Abstract

Article

Exclusion - Sport Exercise or Activity

This policy does not cover any  liability for Personal Injury to any person or Property Damage to the property of any person arising directly or indirectly out of or in any way connected with, the actual participation of such person in any sport exercise or activity such as but not limited to aerobics, athletics, football, aquatic, aerial or equestrian activity.

The phrase, “sport exercise or activity”, is not entirely clear. First, it could be read as if there were a comma between “sport” and “exercise”. Secondly, if the word “sport” were read in an adjectival sense as qualifying what follows, it is not clear whether it qualifies only “exercise” or also “activity”. Thirdly, the word “sport” qualifies only the word “exercise” and not the word “activity”. Yoga is plainly an “activity” but whether it is a “sport activity” is a more difficult question. Whether it is an “activity” in a list of items which includes “sport” and “exercise” and which provides as examples, “aerobics, athletics, football, aquatic, aerial or equestrian activity” raises further issues. Even the assumption that yoga involves physical exercise might be misplaced if the particular form of yoga is purely meditative and does not involve such poses as might be typical in other forms of yoga. Wigge v Allianz Australia Insurance Ltd [2020] NSWSC 150

 

Formation of a Contract

The major elements necessary for the formation of a contract are offer and acceptance, consideration, intention to create legal relations, and certainty of terms. On rare occasions it may be inferred without a clearly identifiable offer and acceptance from conduct, but depends on the objective manifest mutual intention of the parties. The conduct must evince agreement sufficiently clearly. It is not enough that it is merely consistent with it and must positively indicate that both parties considered themselves bound by that agreement. Adnunat Pty Ltd v ITW Construction Systems Australia Pty Ltd [2009] FCA 499;P’Auer AG v Polybuild Technologies International Pty Ltd [2015] VSCA 42. Acceptance of an offer may be inferred if an objective bystander would conclude from its conduct, including its silence, that it had done so and had communicated it to the offeror. Woolcorp Pty Ltd v Rodger Constructions Pty Ltd[2017] VSCA 21; Danbol Pty Ltd v Swiss Re International Se [2020] VSC 23.

Extension of Contract

An extension of a policy to permit certain action maybe intimated by the communication, ‘held covered’. Absent express agreement as to the term of the interim cover, it will generally be implied that it is to continue for a reasonable time unless there is termination by either party. There will be a reciprocal implied term for payment of a reasonable premium which is calculable. Canberra Pools Pty Ltd v MMI General Insurance Ltd [2000] FCA 751. Acceptance of an offer can be implied from the circumstances and the conduct of the parties: Brogden v Metropolitan Railway Co (1877) 2 App Cas 666; although it must be absolute and unqualified. Quadling v Robinson (1976) 137 CLR 192; Danbol Pty Ltd v Swiss Re International Se [2020] VSC 23.

For an extension by a temporary cover note the insured must accept of the insurer’s offer by its communication to the insurer or by implication by conduct showing reliance on it implying a promise to pay either the renewal premium or the premium for the temporary cover note. Taylor v Allon [1966] 1 QB 304. Ordinarily, a policy remains in force until its period expires. If it is renewable and both parties agree, it is effected by the insured’s tendering the premium, an offer which the insurer is free to accept or decline; or it may offer to renew by sending him a renewal notice and his acceptance is communicated by payment of the premium within the time stipulated, or any extension thereof, in default of which the offer lapses. Its sending a renewal notice and statement of account debiting premium for a policy does no more than indicate that it is keeping open its offer to renew. Conversely, in the absence of express agreement, the insured cannot be compelled to extend the policy and pay the premium.   Randle v Western Australian Insurance Company Ltd(1981) 1 ANZ Insurance Cases 60-442; Danbol Pty Ltd v Swiss Re International Se [2020] VSC 23.  

Unilateral Contract

A unilateral contract is constituted by an offer by way of a promise for an act, the offer being accepted by the doing of the act. The promise is offered as consideration for the doing of the act; and the act is done in consideration of the promise. But this is not a promise of a gift in the event of the promisee’s doing the act unresponsively to the promise rather than as the provision of consideration for it. Australian Woollen Mills Pty Ltd v Commonwealth (1954) 92 CLR 424. If the promise is qualified by a reservation reserving a choice to escape from it, its act in accordance with the other party’s acceptance of the promise does not amount to consideration. Gippsreal Ltd v Registrar of Titles and Kurek Investments Pty Ltd (2007) 20 VR 157; Danbol Pty Ltd v Swiss Re International Se [2020] VSC 23.