The Hancock Family Memorial Foundation Ltd v Lowe

(2015) 320 ALR 337; [2015] WASCA 38

Western Australia Court of Appeal

Built by Barristers,
For Australian Law.

See how it works

Interrogate

Catchwords

1. Insurance
2. › Professional indemnity insurance
3. › Excess insurance
4. › Condition precedent to liability of excess insurers
5. › Whether underlying insurers had paid, admitted liability, or been held liable to pay full amount of indemnity
6. › Construction of excess policy condition
7. › Insurance Contracts Act 1984 (Cth), s 51, s 52
1. Insurance
2. › Professional indemnity insurance
3. › Excess insurance
4. › Nature and characteristics of excess insurance policies
5. › Whether excess insurers' liability attaches only after primary cover exhausted
1. Insurance
2. › Insurance Contracts Act 1984 (Cth)
3. › Third party claims against insurer
4. › Section 51(1)
5. › Whether condition in policy void under s 52 as contracting out of s 51(1)
6. › Whether condition excluding, restricting or modifying operation of Act
1. Contract
2. › Implied contract
3. › Implied retainer of solicitor
4. › Test for establishing implied retainer
5. › Whether relationship of solicitor and client a necessary and clear inference from proved facts
6. › Standard of proof

Quick Take

A condition precedent in an excess insurance policy requiring underlying insurers to have 'admitted liability to pay the full amount of their indemnity' requires admission of both the fact and full extent of the insured's liability to the third party claimant, not merely an admission that the claim falls within the scope of cover. A grant of indemnity by the underlying insurer subject to a reservation of rights and conditional on a finding of liability does not satisfy such a condition. Section 52 of the Insurance Contracts Act 1984 (Cth) does not render void a condition precedent in an excess policy where the third party's inability to recover is attributable to the scope of s 51(1) rather than to the condition itself. The question whether estoppel by convention can apply to assumptions of law was left open.