|
Date: Mon, 13 Aug 2007 07:30 From: Neil Foster Subject: Duty of Good Faith in Insurance Contracts - NSWCA
Dear Colleagues An interesting decision of the New South Wales Court of Appeal in CGU Workers Compensation (NSW) Limited (ACN 003 181 002) v Garcia [2007] NSWCA 193 (10 August 2007). The main judgement is given by Mason P, who some of us heard at the Restitution in Commercial Law conference last weekend at UNSW. (I was interested to note that his Honour cites OBG v Allan and Sempra in his decision - [58]-[59], [76].) He concludes that there is no free-standing tort of "failure to act in good faith" that attaches to insurance companies; the main reason that some time needed to be devoted to this apparently uncontroversial proposition is that there was a decision of a single judge of the NSW Supreme Court from the early 1990s that suggested that there might be such a tort (as usual, decided by a ruling on a strike-out action so the parameters of the suggested tort were never actually tested). That decision, by Badgery-Parker J in Gibson v Parkes District Hospital (1991) 26 NSWLR 9, must now be regarded as clearly over-ruled. He also concludes that there is no general implied duty of good faith arising in insurance contracts at large, though there may be such a duty in some specific other types of contracts. And he confirms that under Australian law at the moment exemplary damages cannot be awarded for breach of contract - [73]. (This was one of the reasons why the plaintiff wanted to establish a tort action.)
Regards
Neil Foster
<<<< Previous Message ~ Index ~ Next Message >>>>>
|
»
»
»
»