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Endnotes

^[1]The first Insurance and Savings Ombudsman was until his recent resignation Mr Terry Weir. He was appointed in December 1994. A Ministry of Consumer Affairs Survey of Insurance Practices (which identified non-disclosure as a major theme of complaints about insurance) had in 1993 reviewed existing means of redress provided by individual and associated insurers. The self-regulating initiative of individual and associated insurers led to calls for and the creation of an Insurance and Savings Ombudsman Scheme. Similar schemes had earlier been established in Australia and the United Kingdom. On 1 January 1995 the scheme began to provide an impartial, free, fair, accessible, effective, and publicly accountable insurance and savings dispute resolution service. The Ombudsman is appointed by, and reports publicly to, a commission whose members include nominees of the Minister of Consumer Affairs. The Ombudsman works within terms of reference (dated 13 May 1994), and is funded by levies, both of which are set by the third part of the scheme: an Industry Board. The scheme applies only to insurance products that participating insurers elect to submit to the Ombudsman's jurisdiction. For more detail see Rogers, 1996.

^[2] "In considering what is fair and reasonable in any circumstances I may . . . have regard to relevant law", Insurance and Savings Ombudsman, Terms of Reference (13 May 1994), 7.

^[3]The Bills of Mortality is of course the area within which before the Births and Deaths Regulation Act 1836 (6 and 7 Will 4, c 86) provision was made for the recording of deaths in London.

^[4]This provision entitles the secured creditor to compel the application of insurance proceeds in reduction of the secured liability, though this is uncertain. For a discussion of the position in England (where, however, the corresponding provision is preceded by the words "[w]ithout prejudice to any obligation to the contrary imposed by law": Law of Property Act 1925 s 108(4)), see Law Commission (England and Wales), Land Mortgages (Working Paper 99, 1986), para 3.28. In the context of landlord and tenant see Searl v South British Insurance Co Ltd [1916] NZLR 137, 144, Sim J: "Now the Statute in question was not passed for altering the contractual rights and obligations of parties."

^[5]Because of the reference to "governors or directors of the several insurance offices": Portavon Cinema Co Ltd v Price and Century Insurance Co Ltd [1939] 4 All ER 601, 607.

^[6]Compare Contracts and Commercial Law Reform Committee, 1984, paras 4.1_4.4. The question whether the only other section of that statute surviving in New Zealand (s 86) should remain is outside the scope of this report and must await New Zealand developments following such decisions as Cambridge Water Co v Eastern Counties Leather plc [1994] 2 AC 264 and Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520. (See the discussion by Chambers in Todd (ed), 1997, chapter 10). When that decision is made the observations of McKenna J in Mason v Levy Auto Parts of England Ltd [1967] 2 QB 530, 543 should not be overlooked:

For my part, I find it . . . deplorable that liability should depend, in the matter of fire, on what a draftsman meant in Queen Anne's day by "accidental fires". (The Act of 1774 re-enacted with amendment 6 Anne c 31 s 6.) It is proof of our love of old things, rather than a tribute to his drafting skill, that we _ and more surprisingly our kinsmen in the antipodes . . . _ are still governed by his phrase.

^[7]The view expressed in MacGillivray on Insurance Law, 1997, para 21.25 is that "[s]ection 83 should now be repealed and replaced by a short statute requiring any insurer to use the insurance money for reinstatement if he is requested to do so by any person interested in the property."

^[8]In 1928 in both the United Kingdom and in New Zealand a claim in tort, to be provable in a bankruptcy or winding up, was required to be a liquidated sum. An exception was a claim that arose from a tortious act committed in a New Zealand workplace, which from the coming into force of the Workers' Compensation Act 1922 (NZ) s 53 was allowed to be proved in a bankruptcy even if not a liquidated sum. Section 87 of the Insolvency Act 1967 read with the definitions of "debt provable in bankruptcy" and "provable debt" in s 2 of the 1967 Act made all unliquidated claims in tort provable on a bankruptcy. Before the Companies Act 1903 (NZ) s 246 was enacted all claims were admissible to proof against a company (see Companies Act 1882 (NZ) s 219). But after the 1903 Act bankruptcy rules applied to debts provable in company liquidations: Companies Act 1908 s 246; Companies Act 1933 s 256; Companies Act 1955 s 307; Companies Act 1993 ss 302_313.

^[9]While not comparable, the fact that in 1995 there were 64 247 convictions for traffic offences is an indication of the increase since 1928 in the use of motor vehicles in New Zealand: Ministry of Justice, 1996, 88.

^[10]Workers' Compensation for Accidents Act 1900 s 17, Workers' Compensation for Accidents Act 1908 s 19, Workers' Compensation Act 1908 s 42, and Workers' Compensation Act 1922 s 48. Both the 1908 and 1922 statutes expressly made compensation claims provable in bankruptcy (s 47, s 53 respectively).

^[11]Only with the enactment of the Law Reform Act 1936 ss 3(1)_(2) was the law in New Zealand changed so that a deceased insured's cause of action against an insurer could survive the insured's death and so be maintained by an administrator of the deceased insured's estate. Where the insurer's liability arose under a policy of insurance taken out before 1 June 1937 under the Motor-vehicles Insurance (Third-party Risks) Act 1928, special time limits applied: s 3(7). It seems likely that this part of the 1936 New Zealand Act was modelled on the virtually identical change to the law in the United Kingdom made by the Law Reform (Miscellaneous Provisions) Act 1934 s 1(1). See para 75 for comments by Sir William Jowitt.

^[12]Section 1(1) of the Act refers, generally, to "any contract of insurance [whereby] a person . . . is insured against liabilities to third parties which he may incur."

^[13]On which see Australian Law Reform Commission, 1982, paras 338_340, and 1988, paras 759_764.

^[14]Motor vehicle owners' duty to insure against liability for injuring the person of a third party in s 3 of the Motor Vehicles Insurance (Third Party Risks) Act 1928 was re-enacted in s 67 of the Transport Act 1949 and in s 79 of the Transport Act 1962, repealed as from 1 April 1974 (SR 1973/167/2) by s 22(1) of the Transport Amendment Act 1972. The last provision requiring employers to insure against liability to pay compensation appears to have been s 82 of the Workers' Compensation Act 1956, repealed from 1 July 1992 by s 179(1) of the Accident Rehabilitation and Compensation Insurance Act 1992. However, there is still on the books a requirement for air carriers to insure against specified consequences: see Carriage by Air Act 1967 ss 22 and 29.

^[15]Wages Protection and Contractors' Liens Act Repeal Act 1988. See too the dissenting judgment of Williamson J in Attorney-General v McMillan & Lockwood Ltd [1991] 1 NZLR 53, 67_68.

^[16]For a discussion of the difficulties a third party injured faces in using the 1982 Act to enforce an insurance contract for his or her benefit, see Brian, 1996.

^[17]Affleck notes that s 9 does not answer this question as the proviso to s 6(4) of the Law Reform (Miscellaneous Provisions) Act 1946 does by providing that courts shall not grant the leave usually required to enforce the charge if satisfied that the insurer is entitled under the contract to disclaim liability (1996, 634). However, Affleck adds that the decision in Lissenden v Yorkville Nominees Pty Ltd (in liq) and Ors (1984) 3 ANZ Ins Cas 60-597 clarifies that the reference in s 9(1) of the New Zealand Act to insurance money "that is or may become payable" entitles an insurer to deny liability for breach of a condition precedent to liability before the event giving rise to liability.

^[18]Todd, 1993, 217, citing the Report to the Minister of Justice of the Contracts and Commercial Law Reform Committee, Privity of Contract (1981). Compare Law Commission (England and Wales), 1996; the legislation the report recommends has apparently not yet been enacted in the United Kingdom.

^[19]Affirmed without a decision on this point being necessary UEB Packaging Ltd v QBE Insurance (International) Ltd (unreported, 19 December 1997, CA 169/96). See too Meagher JA's words on the corresponding New South Wales provision: "The basic reason why the plaintiff must fail is that s 6(4) expressly provides that the plaintiff in a statutory action `shall . . . have the same rights and liabilities . . . as if the action were against the insured'": (1991) 25 NSWLR 422, 428.

^[20]Both provisions are in marked contrast to the "first in first served" effect of the English statute: see Cox v Bankside Members Agency [1995] 2 Lloyds' Reports 437.