Articles

When is a hazard truly “obvious”? The New South Wales Court of Appeal’s decision in The Owners – Strata Plan No 31337 v Balacco  [2026] NSWCA 50 serves as a timely reminder that the answer is not always straightforward. The case arose from a trip on an unpainted speed hump in a carpark where every other hazard had been marked, and the consequences for the Owners proved significant. In this article, Partner Danielle Skinner, Senior Associate Nina Abangan and Paralegal Emma Woods examine how the selective painting of hazards undermined the obvious risk defence, and what occupiers must consider when managing risk across their premises.

When a student skydiver is seriously injured on landing, the instinct to look skyward for someone to blame is understandable. But what happens when the expert evidence, the video footage, and two independent instructors all point to the student himself as the cause of his own injury? In this article, Partner Stephanie Huestis and Solicitor Amber Boyce investigate this through examining Eyles v Sydney Skydivers Pty Ltd.

Few areas of insurance litigation test the outer limits of civil proof more acutely than contested arson claims. Where the very event that is the subject of the dispute consumes most of the available physical evidence, courts are left to draw meaning from conduct, context and character. In this article, Associate Sam Cooper and Partner Rebecca Stevens examine the Supreme Court of Queensland’s decision in PBR Properties Pty Ltd v Chubb Insurance Australia Limited [2026] QSC 47,  delivered on 13 March 2026 by Sullivan J, and explore why it stands as a compelling study in insurance litigation.

The NSW Court of Appeal in Victorian Xray Group v Malouf [2026] NSWCA 5 has reinforced important protections for solicitors, confirming unsuccessful proceedings are not necessarily indicative of negligence. The critical test is whether a reasonably careful solicitor would have concluded the case was “hopeless and doomed to fail” with the information available at the time of filing a pleading – not with the benefit of hindsight.

In Queensland, during the pre-litigation stage of personal injuries claims, one of the banes of defendant lawyers’ lives is responding to lengthy requests for disclosure, many of which seem to increasingly extend beyond the ambit of the disclosure obligations under the Personal Injuries Proceedings Act 2002 (the PIPA). This may partly be explained by the seemingly more liberal interpretation of the disclosure obligations given by the courts in recent times. There are essentially two types of disclosure obligations under the PIPA: a positive obligation to disclose documents; and a reactive obligation to disclose information upon request. This article examines the scope of the obligation to disclose documents ‘about the incident’ and the scope of that phrase.

The High Court of Australia has recently clarified when loss first arises in professional negligence claims involving defective binding financial agreements (BFAs). In R Lawyers v Mr Daily [2025] HCA 41, the Court held that a client does not suffer compensable loss at the time a defective BFA is executed because any benefit remains contingent until separation. The limitation period therefore did not commence until the marriage broke down. However, the Court also confirmed that the plaintiff’s only proven loss was a modest sum of wasted legal fees, and that his broader “loss of a better outcome” claim failed for want of evidence. In this article Partner Greg Stirling, Partner Mark Brookes and Senior Associate Joel White, examine the Court’s reasoning on contingent loss, its rejection of the “damaged asset” analogy, and the evidentiary hurdles for proving a better financial outcome.

As observed in the prior edition of Constructive Notes, “Judicial consideration of London Market Design (DE) Clauses”, commonly contract works policies utilised in major projects (whether written locally or by United Kingdom (UK) underwriters) are incorporating an exclusion from one of two sets of clauses derived from UK industry bodies. There had not until relatively recently been any reported judicial consideration of the operation of the other set of clauses (London Engineering Group (LEG) Defects Wording). A 2015 decision by the Court of Appeal for British Columbia provided the first considered judicial analysis of the operation of an LEG 2/96 Defects Exclusion, notwithstanding a large question mark over the status of the decision. More recently, US courts have handed down judgments in two cases which provided the first judicial consideration of the LEG 3 Exclusion. These cases are analysed in this newsletter by Partner Patrick Mead along with their likely impact in Australia.

While insurance coverage for material damage loss on a project is necessarily determined by reference to the particular project policy wording, increasingly contract works policies utilised in major projects (whether written locally or by United Kingdom (UK) underwriters) are incorporating exclusions from one of two sets of clauses derived from UK industry bodies. There is a limited body of jurisprudence in relation to the interpretation of one set of these clauses in the UK (London Market Design (DE) Clauses). These cases are analysed in this newsletter.

In this article, Partner Milton Latta discusses a recent NSW Court of Appeal decision in which an important qualification was applied when assessing whether, in a labour hire context, there had been a transfer of vicarious liability from the actual employer to the host employer. The article examines how, as a result of this qualification, it may now be harder for an employer to transfer vicarious liability to the host.

Two Australian case authorities on the operation of an exclusion for ‘flood’ are the Queensland Supreme Court decisions in LMT Surgical Pty Ltd v Allianz Australia Insurance Ltd and Wiesac Pty Ltd v Insurance Australia Group Ltd. The first of those cases concerned the words ‘water overflowing from the normal confines’ and the second ‘water escaping or released from the normal confines’. The plaintiff was successful in the first-mentioned case but unsuccessful in the second, with the judge noting that there was only one word that was different in the flood exclusion in Wiesac compared to that considered in LMT Surgical. In a later Queensland Supreme Court case, of Landel Pty Ltd v Insurance Australia Ltd, Dalton J was called upon to consider an exclusion for ‘flood’ which was in all respects identical to the exclusion under consideration in LMT Surgical. Carter Newell acted for the insurer in the latter two cases, and all three authorities are considered by Partner Patrick Mead in this issue of Constructive Notes.

Recovery under contract works policies can provide fertile ground for dispute, particularly when property is allegedly damaged in consequence of defective workmanship, material or design. In this article, Partner Patrick Mead discusses the two areas in particular that are, the questions of what constitutes ‘damage’ or ‘physical damage’ under the policy and what portion of that damage can be said to fall within a common proviso to the defective workmanship/design exclusion seeking to limit the exclusion to that part of the works ‘immediately affected’.

A peril in first-party insurance destroys or diminishes the insured’s person, property or interest or deprives the insured of its use. That an insured should bear a specified part of each loss by way of a deductible or excess provision is a familiar feature of insurance policies which provide cover of this nature. The purpose of an aggregation provision is to avoid serious disadvantage to the insured where several incidents of damage all flow from one underlying cause. The choice of language used to express the necessary unifying factor is of critical importance.