Insurance & Risk


We have one of the largest insurance teams in Western Australia and have been recognised as leading practitioners in the market.  The size and structure of our team means we are well placed to deal with large volumes of routine insurance claims as well as large complex litigation cases.

We work closely with our clients to provide cost-effective legal services through delegation of work to the appropriate level while being supervised by a Partner.

We act for a diverse range of entities including local, regional and international insurers, brokers, underwriting managers, corporations and business enterprises in regards to insurance related matters. We also provide specialist legal advice on matters as diverse as workers’ compensation to professional indemnity and highly specialised medical negligence claims.

Our team has extensive experience across all product lines and are skilled in the provision of advice and representation in all courts and tribunals and in alternative dispute resolution, such as arbitration, conciliation and mediation.

Our core capabilities in Insurance include:

  • Aviation and land transport

  • Business interruption

  • Compulsory third party motor vehicle

  • Construction, resource and project insurance

  • Employers’ indemnity

  • Maritime

  • Medical negligence

  • Public and product liability services

  • Professional indemnity, including directors’ and officers’ liability

  • Assist clients in responding to workplace safety incidents and liaising with WorkSafe and Resources Safety

  • Represent clients in court, commission and tribunal hearings including the defence of WorkSafe prosecutions and coronial inquests

  • Legislative compliance and risk management safety audits.

Professional Indemnity

  • Acted for insurers defending a claim exceeding AUD10 million by a listed diamond company against a firm of engineers who had been engaged to design and construct an upgrade facility for a diamond processing plant. Expert reports and information were gathered very early in the claim enabling the insurer to demonstrate the likelihood of its defences succeeding. As a result, the claimant did not issue proceedings against the engineers.
     
  • We represented interstate solicitors in claims by a financial service provider by a group of investors who acquired certain tranches of instalment warrants with scope of the quantum being $7 million. As a result, the financial service provider discontinued its claim against our client.

Directors and Officers

  • We acted for both executive and non-executive directors of a publicly listed company in their dealings with their insurers and provided advice on statutory enquiries and the provision of statements. 
     
  • We were instructed by an insurer to advise on possible conflict of interest facing the solicitors who represented the insurer’s interests in respect of a claim against directors. The Court of Appeal dismissed all claims against the insured’s insurers and the plaintiff was held liable for all costs. 

Property Damage

  • We were instructed to investigate the circumstances of an accident in respect of a drill rig that was irreparably damaged by two of the insured's employees on a labour hire basis. The plaintiff sought over $2 million plus interest and costs where a favourable outcome was achieved.
     
  • We acted for a marine insurer of one of the consignors of a mixed cargo of sulphur from Canada to Kwinana. It could not be established how the metal objects came to be in the cargo which we emphasised to the claimant’s lawyer. The claimant did not proceed with the claim.

Workers’ Compensation

  • We acted for a trucking company in defence of stress claims brought by two drivers who claimed they were victimised in the course of their employment and were treated unfairly. We negotiated a settlement that was to the satisfaction of the employer and the insurer.
     
  • We acted for a mining company where one of its employees sought Workers' Compensation for a serious leg injury. The matter was resolved within 8 months without the need to proceed to a hearing.

Compulsory Third Party Vehicle Insurance

  • We represented the Insurance Commission in relation to a claim for significant spinal and ankle injuries. The plaintiff's costs were agreed at $111,000.  Damages in the order of $2 million had been sought. We managed to settle the matter at a lengthy informal conference.
     
  • We represented the Insurance Commission in a claim for significant head injury with an ambiguity of whether a seat belt had been worn. The plaintiff’s initial expectations were double that of which it was settled at a pre trial conference.

Medical Malpractice / Treatment Liability

  • We have represented hospitals, doctors, nursing agencies, home in the hospital care providers, aged care service providers and allied health professionals in respect of various claims.
     
  • In addition, we have represented health industry professionals and organisations in coronial investigations and inquests. 

Stefan Sudweeks

Lead Partner

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Alex Lustig

Partner

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Fiona Dempster

Partner

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JC van der Walt

Partner

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Bree Lawrence

Special Counsel

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Carolyn Moss

Senior Associate

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Lucinda McLeod

Associate

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Ruth Burnett

Associate

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Phillip Lovatt

Senior Associate

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  • 11 July 2017

    “Charge” your glass – Section 6 is dead… in NSW

    After much debate as to its operation, Section 6 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) (Section 6) has now been repealed and replaced by the Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW).  The new legislation abolishes the problematic “charge” over insurance monies and brings clarity to third party claimant proceedings brought directly against insurers. 

    Author: Stefan Sudweeks

    LINK 35 Bytes

  • 18 December 2015

    Duty of Disclosure: How brokers’ knowledge and conduct affect their clients

    Kalabakas v Chubb Insurance Company of Australia [2015] VSC 705 is a timely reminder of the importance of an Insured’s duty of disclosure and the broker’s important role in avoiding a breach.

    Authors: Lucinda McLeod, Stefan Sudweeks, JC van der Walt

    LINK 41 Bytes

  • 10 July 2015

    Mind the gap: a cautionary tale of extra entitlements for workers

    The full Federal Court decision of Anglican Care v NSW Nurses and Midwives’ Association [2015] FCAFC 81 may mean that national system employees receiving workers’ compensation pursuant to the WA workers’ compensation regime may also be entitled to accrue annual leave entitlements.

    Authors: Renae Harding, Alex Lustig

    LINK 41 Bytes

  • 1 July 2015

    Court of Appeal further limits scope of apportionment: This time under the ACL

    A unanimous Court of Appeal made the obiter dicta observation that the only cause of action that is apportionable under the Australian Consumer Law is the civil liability arising from misleading or deceptive conduct prohibited by s18 (a general prohibition on misleading or deceptive conduct in trade or commerce).  Causes of action based on other similar but narrower provisions in the Australia Consumer Law, such as the s30 prohibition on false or misleading representations in connection with the sale or grant of land, are not apportionable.

    Whilst the Court of Appeal’s observation was obiter, this case is the latest in a line of Federal and High Court decisions, and is arguably consistent with analogous views of the High Court in Selig v Wealthsure Pty Ltd [2015] HCA 18 (Selig).

    The authors considered those cases in an article last month, and this new case should be seriously considered by those whose interests are affected by proportionate liability.

    Author: JC van der Walt

    LINK 41 Bytes

  • 13 May 2015

    ‘Deep pocket’ defendants still liable for the kitchen sink – The High Court limits which claims are ‘apportionable’

    A Ponzi scheme, moral culpability, statutory interpretation and disagreeing Federal Court judges. Those were the ingredients that lead the High Court in Selig v Wealthsure Pty Ltd [2015] HCA 18 (Selig) to consider the proportionate liability regime for just the second time since the legislation was introduced more than 10 years ago.

    The High Court, in an unanimous decision by French CJ, Kiefel, Bell, Gageler and Keane JJ, determined that the only cause of action that is apportionable under the Corporations Act is the civil liability arising from the misleading or deceptive conduct prohibited by s1041H (a general prohibition on misleading or deceptive conduct in relation to a financial product or a financial service, the contravention of which leads to civil liability only).  

    In doing so, the High Court settled a lingering inconsistency between two previous Federal Court decisions.

    Author: JC van der Walt

    Download PDF 38 Bytes

  • 19 October 2014

    High Court reinforces test of vulnerability for pure economic loss claims in tort

    High Court reinforces test of vulnerability for pure economic loss claims in tort

    On 8 October 2014, in Brookfield Multiplex Ltd v Owners Corporation Strata Plan 61288 & Anor [2014] HCA 36 the High Court unanimously allowed an appeal from a decision of the Court of Appeal of New South Wales by holding that Brookfield, which was the builder of a strata titled apartment complex, did not owe a duty of care to the Owners Corporation to avoid causing economic loss resulting from defects in the common property.

    Author: Stefan Sudweeks

    LINK 39 Bytes

  • 10 September 2014

    No Trucking Way – High Court denies the limitation of s54(1) to ‘insured’ acts

    The assessment of risk is now that much harder for underwriters after the High Court on 10 September 2014 unanimously dismissed an appeal from a decision of the Court of Appeal of the Supreme Court of Western Australia. If underwriters assess risk thinking that endorsements in a policy, for example as to age or qualifications or assess risk thinking an exclusion from cover relating to non-compliance with safety standards, will operate to limit the scope of cover, then their risk assessment is unlikely to be accurate.

    Author: Stefan Sudweeks

    Download PDF 39 Bytes

  • 16 May 2014

    Warning to clients – the duty pendulum swings towards advisors

    The NSW Supreme Court recently held that a solicitor providing legal advice to a client did not have a duty to warn against business risks in circumstances where the client was shown to have commercial nous and sophistication.

    This judgment provides welcome guidance to those considering the application of earlier authorities in which it was found that solicitors’ duties are not simply confined to the four walls of their retainer but that their duties could extend to advising a client of the practical implication of the client’s entry into a transaction the subject of the advice.

    Authors: Stefan Sudweeks, JC van der Walt

    LINK 63 Bytes

  • 13 November 2013

    Asbestos Diseases Compensation Bill 2013

    The Asbestos Diseases Compensation Bill 2013 (the Bill) was introduced into parliament by the Honourable Kate Doust, MLC, as a private members bill. It received its second reading on 31 October 2013 and was adjourned to 19 November 2013.

    Author: Alex Lustig

    Download PDF 559 Bytes

  • 31 October 2013

    "Intercourse is out of the course"

    On 30 October 2013, the High Court handed down its decision in Comcare v PVYW [2013] HCA 41 which considered whether an employee’s injuries arose in the course of employment where those injuries were suffered while the employee was engaged in sexual intercourse with an acquaintance during an overnight stay at a motel that was booked by the employer.

    Author: Alex Lustig

    Download PDF 383 Bytes

  • 30 October 2013

    A useful summary of the law of interpretation of insurance policies in Western Australia

    An extract of the decision of Hall J in Birla Nifty Pty Ltd v International Mining Industry Underwriters Ltd [2013] WASC 386. It is a useful and succinct summary of how the Western Australian Supreme Court approaches the interpretation of insurance policies.

    Author: Stefan Sudweeks

    Download PDF 541 Bytes

  • 16 October 2013

    Proportionate Liability Update – ‘Contracting out’ backed by the High Court

    The High Court dismissed a challenge to the earlier NSW Court of Appeal decision that a party could contract out of the NSW proportionate liability regime without expressly referring to the proportionate liability legislation.

    Author: JC van der Walt

    Download PDF 621 Bytes

  • 11 July 2013

    S6 of the Law Reform (Miscellaneous Provisions) Act 1946

    The long awaited decision of whether there is a charge over Director's & Officer's defence costs was handed down yesterday in Chubb Insurance Company of Australia Limited v Moore [2013] NSWCA 212.

    Australian claimants cannot use s6 to claim a charge over D&O insurance policy moneys that might be used as defence costs prior to the entry of judgment or settlement. Accordingly insurers may pay defence costs without risk.  

    Author: Stefan Sudweeks

    Download PDF 554 Bytes

  • 9 July 2013

    Are injuries resulting from assaults during an interval or break from work compensable?

    M v RBD Contracting Services Pty Ltd [2013] TASWRCT 12 and Qantas Airways Ltd v Arnott [2013] NSWWCCPD 35[2013] WASC 194. 

    Two recent cases in NSW and Tasmania have provided some further guidance on what circumstances injuries arising from assaults will be held to arise “in the course of” a worker’s employment.

    Author: Alex Lustig

    Download PDF 394 Bytes

  • 31 May 2013

    Don’t forget the “or” – An update on contractual interpretation, extrinsic evidence and the gateway test of ambiguity

    On 21 May 2013, the Supreme Court of Western Australia considered recent judgements that have affirmed the ‘narrow’ Australian approach to contractual interpretation.  That approach being that evidence of surrounding circumstances will only be admissible as an aid to determining what the intention of the parties to a contract is where the language of the contract is ambiguous or susceptible to more than one meaning (Mason J’s ‘true rule’ from Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337).

    This article examines the latest Supreme Court decision in the context of those that came before it and concludes that maybe the admission of extrinsic evidence is not as hard to achieve as might have been thought after the High Court considered Codelfa in Jireh in late 2011.

    Author: Stefan Sudweeks

    Download PDF 461 Bytes

  • 24 May 2013

    Proportionate Liability: paying a fair share

    The first High Court decision on proportionate liability endorses a wider interpretation of the proportionate liability provisions than previously adopted.

    In this case, the High Court considered whether independent causes of action (fraud and negligence) were apportionable claims. The High Court held that the different causes of action were founded on the same harm to economic loss and were apportionable.

    Authors:

    Download PDF 4 Bytes

  • 17 May 2013

    Are injuries resulting from “hijinks” compensable?

    The Federal Court held on 19 April 2012 that injuries suffered by an employee whilst engaging in sexual activity in a motel room paid for by her employer on a business trip occurred “in the course of employment”.

    After an unsuccessful appeal to the Full Court of the Federal Court in December 2012 the employer’s insurer, Comcare, has now been granted special leave to appeal to the High Court against this decision. Comcare seeks a ruling on whether the circumstances surrounding an injury may be relevant to an assessment of whether an injury occurs “in the course of employment”. 

    Author: Zaneta Witherington

    Download PDF 410 Bytes

  • 29 April 2013

    The get out of jail free card: When is a dismissal not a dismissal

    The Court of Appeal held on 9 April that the purpose of the standard case management timetable prescribed by Rule 30 of the District Court Rules (WA) (“DCR”) was simply to provide a guide to the timetable to be fixed in an action. Therefore, in cases which the standard case management timetable applies, that is where the entry for trial milestone is not set by Court order, a failure to enter the action by the date “suggested” by the standard timetable will no longer result in actions being automatically placed on the Inactive Cases List (“ICL”).

    Authors: Alex Lustig, Zaneta Witherington

    Download PDF 433 Bytes

  • 25 March 2013

    Proportionate Liability - The inadvertent ‘contracting out’ of the regime

    This is another example of a party unintentionally 'contracting out' of the proportionate liability regime, but this time the contract predated the commencement of the proportionate liability legislation.

    In this case, the NSW Court of Appeal found that a deed (which was entered into before the commencement of the relevant proportionate liability legislation) altering the rights and liabilities of the parties, had the effect that the parties 'contracted out' of proportionate liability.

    Author: JC van der Walt

    Download PDF 415 Bytes

  • 12 March 2013

    A warning to solicitors on their penumbral duty to clients – the more you know, the more you owe

    The NSW Court of Appeal recently held that a solicitor providing legal advice to a client in respect of a mortgage transaction had a penumbral duty to the client that went beyond the scope of the solicitor’s retainer. The unanimous finding was that the solicitor had a duty to advise its client to seek independent financial advice given the circumstances of the transaction and the knowledge held by the solicitor.

    Author: Stefan Sudweeks

    Download PDF 453 Bytes

  • 19 December 2012

    Consent judgments allow plaintiffs another bite of the cherry

    The High Court recently held by a majority of 3 – 2, that the restriction under section 7(1)(b) of the Law Reform (Contributory Negligence and Tortfeasors’ Contribution) Act 1947 (WA) (“the Act”) on the sum recoverable by a plaintiff who obtains multiple judgments in respect of the same damage, as a result of a tort, does not extend to consent judgments.

    Author: Alex Lustig

    Download PDF 512 Bytes

  • 22 August 2012

    A kick in the teeth? – Exemplary damages for objectively unnecessary treatment without therapeutic effect: Dean v Phung

    In the recent decision of Dean V Phung1, the NSW Court of Appeal considered the appropriate damages to be awarded against a dentist who performed unnecessary treatment.

    Authors:

    Download PDF 316 Bytes

  • 25 May 2012

    Jackson McDonald 5th time Perth Law Firm of the Year

    Jackson McDonald consolidated its position as the leading West Australian law firm when named Perth Law Firm of the Year at the 2012 ALB Australasian Law Awards in Sydney on 24 May 2012.

    It is the fifth year out of six that Jackson McDonald has won this prestigious award.

    Authors:

    Download PDF 304 Bytes

  • 10 January 2011

    Doing Business in Asia Pacific

    Jackson McDonald is a proud member of Globalaw and has assisted in the development of this guide.

    Authors:

    Download PDF 4 Bytes