Clark v Avant Insurance Ltd; Stevens v Avant Insurance Ltd [2022] NSWCA 175

Clark v Avant Insurance Ltd; Stevens v Avant Insurance Ltd [2022] NSWCA 175

The applicants’ claims against Mr Blackstock were first made through letters dated 7 March 2019, which constituted demands for compensation, and were not made during the ROCS policy period which commenced on 16 May 2019. The claims therefore fell outside the scope of the policy’s coverage, and s 54 of the Insurance Contracts Act could not cure this temporal defect. As a result, there was no arguable case that the policy responded to the applicants’ claims, warranting dismissal of the leave applications.

Jurisdiction
Australia
Judgment Date
07 September 2022
Procedural Posture
Applications for Leave to Appeal / Court of Appeal Judgment on Leave Applications and Proposed Appeals
Outcome
Applications for extension of time granted; applications for leave to appeal dismissed with costs.
Legal Topics
['leave to Appeal' 'medical Negligence' 'third Party Claims Against Insurers' 'claims Made Insurance Policies' 'run Off Cover']
['civil Procedure' 'insurance Law' 'personal Injury'] ['leave to Appeal' 'medical Negligence' 'third Party Claims Against Insurers' 'claims Made Insurance Policies' 'run Off Cover']

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Procedural Posture

Applications for Leave to Appeal / Court of Appeal Judgment on Leave Applications and Proposed Appeals

Legal Issues

  1. 1 ["Whether there was an arguable case that the insurer’s (Avant’s) policy responded to the applicants’ claims for medical negligence, specifically whether the relevant demand for compensation was 'first made' during the policy period of the ROCS policy." 'Whether leave to appeal should be granted in circumstances of delay and non-joinder.']

Ratio Decidendi

The applicants’ claims against Mr Blackstock were first made through letters dated 7 March 2019, which constituted demands for compensation, and were not made during the ROCS policy period which commenced on 16 May 2019. The claims therefore fell outside the scope of the policy’s coverage, and s 54 of the Insurance Contracts Act could not cure this temporal defect. As a result, there was no arguable case that the policy responded to the applicants’ claims, warranting dismissal of the leave applications.

Court Disposition

Applications for extension of time granted; applications for leave to appeal dismissed with costs.

Orders

  • ['In proceeding 2022/8808: (1) Extension of time to file summons seeking leave to appeal to 3 June 2022; (2) Summons seeking leave to appeal dismissed with costs.' 'In proceeding 2022/8818: (1) Extension of time to file summons seeking leave to appeal to 10 June 2022; (2) Summons seeking leave to appeal dismissed...