Tzaidas v Child & 3 Ors

(2004) 61 NSWLR 18; [2004] NSWCA 252

NSW Court of Appeal

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Interrogate

Catchwords

1. Insurance
2. › Insurance Contracts Act 1984 (Cth)
3. › Section 54
4. › Insurer's refusal to pay claim by reason of act or omission of insured
5. › Failure to notify insurer of circumstances that may give rise to claim
6. › Whether s 54 relevant to application for leave under s 6(4) of Law Reform (Miscellaneous Provisions) Act 1946 (NSW)
7. › Insurance Contracts Act 1984 (Cth), s 54
1. Insurance
2. › Third party's charge on insurance monies
3. › Leave to commence proceedings against insurer
4. › Proviso to s 6(4)
5. › Whether insurer entitled under terms of contract to disclaim liability
6. › Whether phrase 'under the terms of the contract of insurance' includes effect of statute and general law
7. › Whether proceedings necessary to establish entitlement to disclaim have been taken
8. › Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 6(1), s 6(4)
1. Practice and Procedure
2. › Precedent
3. › Intermediate appellate court
4. › Whether Court of Appeal should depart from its own earlier decision
5. › Whether five-judge bench required
6. › FAI General Insurance Co Ltd v Jarvis [1999] NSWCA 23
1. Negligence
2. › Medical negligence
3. › Hospital liability
4. › Community hospital
5. › Whether arguable case that hospital negligent in failing to recognise and respond to known risk of haemophilia B
6. › Whether hospital negligent in assuming responsibility for birth where not equipped to deal with anticipatable consequences

Quick Take

Section 54 of the Insurance Contracts Act 1984 (Cth) is relevant to the question whether leave should be granted under s 6(4) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW). The phrase 'entitled under the terms of the contract of insurance to disclaim liability' in the proviso to s 6(4) must be read as encompassing the effect of statute and general law upon the contract, including s 54. FAI General Insurance Co Ltd v Jarvis is no longer to be followed on this point. The prohibition in the proviso requires satisfaction of both requirements: entitlement to disclaim and that necessary proceedings have been taken. Where no proceedings have been taken, the prohibition does not apply and the court retains a general discretion.