#Hell on the highway 2014 drivers
#Hell on the highway 2014 driver
#Hell on the highway 2014 trial

The Court gave examples of inherent restrictions or limitations such as the need for there to be a demand made on an insured by a third party during the period of cover for a claims made and notified policy or an occurrence during the period of cover for an occurrence based policy. The High Court said the insurer in this case had misapplied earlier authorities by equating restrictions or limitations inherent in a claim with any restriction or limitation on the scope of cover provided under a contract. The Court said that it was established law that sГЉ54 takes as its starting point nothing more than the existence of a claim and of a contract, the effect of which is that the insurer may refuse to pay that claim by reason of an insuredвЂ™s act or omission after the contract was entered into, focusing not on the legal character of a provision entitling an insurer to refuse a claim, but on the actual conduct of the insured. Importantly, that balance was to be struck irrespective of the form of the contractual term, regardless of whether it was contained in the policy as an obligation of the insured, a continuing warranty, an exclusion from cover or a limitation of the defined risk. The High Court started its assessment by reference to the report of the Australian Law Reform Commission in 1982 which specified that one of the objects of the legislation was to strike a fair balance between the interests of an insurer and an insured in relation to contractual terms designed to protect the insurer from an increase in risk during the period of cover. The High Court said the insurerвЂ™s argument could be reduced to the proposition that theГЉ вЂњclaimвЂќГЉto which sГЉ54(1) refers is limited to a claim for an insured risk.

#Hell on the highway 2014 driver

The argument for the insurers focused on the opening words of the endorsement thatГЉ вЂњnoГЉindemnity was providedвЂќГЉunless the driver had the necessary qualification.ГЉ They argued that the policy only covered damage to vehicles driven by people with that qualification, and that without it the accidents were removed from the scope of cover. The High Court said the only issue on the appeal was whether sГЉ54(1) of the Act was engaged. ГЉIn a unanimous and helpfully brief decision, the High Court upheld the decision of the Court of Appeal and went so far as to specifically find that the Queensland decision in theГЉ JohnsonГЉcaseГЉwas in error and should not be followed. Given the difference of opinion between the states, the High Court granted special leave for an appeal. In reaching its conclusion, the Court of Appeal considered and declined to follow a decision of its Queensland equivalent in Johnson v Triple C Furniture and Electrical Pty LimitedГЉ on which the insurers relied.ДЄ subsequent NSW decision in Prepaid Services Pty Limited v Atradius Credit Insurance NVГЉ considered the differing interpretations in Western Australia and Queensland and also declined to follow the Queensland reasoning. вЂњГ‰ where the effect of a contract of insurance would, but for this section, be that the insurer may refuse to pay a claim Г‰ by reason of some act of the insured or of some other person Г‰ that occurred after the contract was entered into вЂ¦ the insurer may not refuse to pay the claim by reason only of that act but the insurerвЂ™s liability in respect of the claim is reduced by the amount that fairly represents the extent to which the insurerвЂ™s interests were prejudiced as a result of that act.вЂќ

#Hell on the highway 2014 drivers

The insurers denied indemnity based on the endorsement but in both the Western Australian Supreme Court and Court of Appeal, they lost on the basis that the failure to have appropriately qualified drivers was remedied by sГЉ54(1) of the Act.

#Hell on the highway 2014 trial

Neither of the drivers in the accidents had undertaken the specified program, however, the insurer accepted at trial that the driversвЂ™ lack of qualifications did not cause the accidents.

The LloydвЂ™s policy contained an endorsement to the effect that вЂњno indemnity was providedвЂќ unless the driver of the damaged vehicle obtained a minimum score on a specified driver training program. The insured operated a freight transport business running trucks between the east and west coasts.ГЉ Its trucks were insured through LloydвЂ™s for accidental damage and, in separate incidents, two of the trucks were damaged resulting in claims.