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Do Trends in Litigation Justify The Liability Insurance Premium
Increases Being Experienced? ...
The
Judge defined "intoxicated" as "a state wherein there
is, due to the effects of alcohol or drugs, a loss of self-control or
judgment which is more than of minor degree. Experience suggests
that once a state answering that description is reached, the person
affected has a significantly increased risk both of going on to become
even more intoxicated and of suffering injury." The Judge
went on to state, "The obligation of reasonable care seems to me
to involve a refusal of service if it can be seen that the provision
of alcohol is certain to, or probably will, lead to intoxication such
as I have defined it."
It
was recognised by the Judge in regard to the question of breach of
duty that consideration should be given that as an adult, the
plaintiff might be assumed to have knowledge herself of the
consequence of ingestion of alcohol, as it was also recognised that
consideration be given to the endeavours by the club staff for the
plaintiff to use the club's courtesy bus or a taxi. The Judge
determined that neither issue was sufficient to prevent the club's
contribution to the Plaintiff's intoxication amounting to a breach of
its duty of care.
The
judgment of Hulm, J., was that the damage which the Plaintiff has
suffered would be borne by the parties in the proportions of -
Plaintiff (contributory negligence) 40%, First Defendant (driver of
the vehicle) 30% and 2nd Defendant (South Tweed Heads Rugby League
Football Club Ltd) 30%.
This
judgment significantly "raises the bar" in regard to the
duty of care a licensed establishment has in regard to serving
alcohol. Whilst this is not directly associated with
participation in sport and recreation (although many sporting clubs
have alcohol licenses) it is a clear example of how decisions in
recent litigation cases are placing a far higher standard of care on
goods and service providers than has applied previously.
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The
prime criteria insurers use in calculating premium is the history of
claims together with the likelihood of claims occurring during the future term of
the policy. Has the likelihood of liability action (taking into
account both the incidence of litigation and the quantum of awards
being made) increased somewhere in line with the increase in liability
insurance premiums over the years? I am not aware of statistical
data in this regard, but I believe some would argue the proportional
increase in litigation far exceeds liability premium increases.
Liability
insurance is necessary to respond to litigation. If the
incidents of losses increase,
the effect will be higher insurance premiums. Control the cause
and the effect will take care of itself.
Reference:
Australasian Legal Information Institute
Written by Rod
Hughes - Joint Chief Executive Officer
IEA
Sport
July
2001
IEA
has offices in every state. National freecall number 1800 SPORT
1
(1800 77678 1)
Email:info@ieasport.com.au
The editor of the IEA Sport Monthly
Update is joint Chief Executive Officer, Rod Hughes.
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