Abstract

Article

Aggregation - Series

An aggregation clause must be considered in accordance with its particular terms and context. Other cases with different clauses types of cover and circumstantial context can provide only limited assistance,but may reveal a general approach. It requires an exercise of judgment, not a reformulation of the clause. Scott v Copenhagen Reinsurance Co (UK) Ltd [2003] Lloyd’s Rep IR 696; AIG Europe Ltd v Woodman [2017] Lloyd’s Rep IR 209; Bank of Queensland Limited v AIG Australia Limited [2019] NSWCA 190,.

In an aggregation clause, a series is a number of events of a kind, sufficiently similar in the manner ordained, following one after the other in temporal succession, but not necessarily in any progressive order. Any number of distinct events will, unless, by coincidence, they occur simultaneously, necessarily occur in a temporal sequence. Distillers Co Biochemicals (Aust) Pty Ltd v Ajax Insurance Co Ltd (1974) 130 CLR 1. They must be one of a kind or have some characteristic in common, some integral relationship. Ritchie v Woodward [2016] NSWSC 1715 Each element must be satisfied. ‘Related’, if it is used, implies that there must be some inter-connection between the matters referred to, which is often specified as the unifying factor, thereby limiting the scope of the provision to those cases where that particular quality obtains. But such a further prescription is not always desirable if there is a very wide range of transactions in the covered activity. For an example of a series of related wrongful acts, see Bank of Queensland Limited v AIG Australia Limited [2019] NSWCA 190, where, in the absence of another unifying factor,  wrongful act was found to be the unifying factor. In Cox v Bankside Members Agency Ltd [1995] 2 Lloyd’s Rep 437 relevant policy wording referred to claims “arising from one originating cause and in Municipal Mutual Insurance Ltd v Sea Insurance Co Ltd [1998] Lloyd’s Rep IR 421. to all occurrences of a series consequent on or attributable to one source or original cause.

 

It is necessary to distinguish between a unifying factor which is an act or event and one which is a cause, when the degree of proximity of the causal relationship specified may be critical. Originating’ cause isdifferent from event. ‘event’. ‘Originating’ opens up the widest possible search for a unifying factor in the history of losses which it is sought to aggregate. AXA Reinsurance (UK) PLC v Field [1996] 3 All ER 517. If the unifying factor refers to a related series of acts or omissions, without more, it does not relate to their cause, such as the insured’s failure to implement a proper training and monitoring scheme, leading to its representatives giving misleading advice to many investors. Lloyds TSB General Insurance Holdings Ltd v Lloyds Bank Group Insurance Co Ltd [2003] UKHL 48; [2003] 4 All ER 43.

 For the phrase, ‘a series of related matters, it is necessary to begin by identifying the matters,and their relationship is to be adjudged not exclusively from the viewpoint of one party or another, but objectively as a whole. AIG Europe Ltd v Woodman (supra).

Number of Claims in Representative Proceeding

Representative Proceeding are only one “suit or proceeding”, notwithstanding that the named plaintiff has brought them both on its own behalf and on behalf of the Members, but the issue relates to each person who has brought a Claim, and each Member would have brought the suit or proceeding separately, at least from the time that the Member lodged a Class Member Registration Form  so that there would be multiple Claims. Bank of Queensland Limited v AIG Australia Limited [2019] NSWCA 190

Amount of Cover when Claim Repeated

Most actions for damages against an insured will be preceded by a written demand, but  if the claimant makes several demands in respect of the same claim the insurer does not have multiple obligations to indemnify its insured in respect of that set of circumstances. This is often made clear by defining the Insurers’ liability by reference to the claim first made during the Policy period. The insurer’s liability attaches only once, and by reference to the claimant’s first assertion of liability. Bank of Queensland Limited v AIG Australia Limited [2019] NSWCA 190

Independent Operation  of a Contractual Provision

The principle of construction that a contractual provision should prima facie be construed so as to give it some independent operation  speaks of its operation, but does not conflict with the principle that it should be read as part of the whole contract in ascertaning its meaning. Bank of Queensland Limited v AIG Australia Limited [2019] NSWCA 190