Physiobase combines civil malpractice, public and products liability insurance policy
Table of contents
Section 1
Section 2
Insuring clause
Section 3
Section 4 Section 5
. 1.1 Recital 1
. 1.2 Operative Clause 1
. 1.3 Costs and Expenses 1
Automatic extensions
2.1 Professional Duty 1 2.2 Libel and Slander 1 2.3 Dishonesty 1 2.4 Loss of Documents 1 2.5 Trade Practices Act and Related Legislation 1 2.6 Emergency First Aid (Good Samaritan Acts) 1 2.7 Teachers’ Liability 2 2.8 Principal’s Incoming 2 2.9 Prior Corporate Entities 2 2.10 Public Liability 2 2.11 Products Liability 2 2.12 Specific Exclusion Applicable to Automatic Extensions to Sections 2.10 Public
Liability and 2.11 Products Liability 3
2.13 Specific Conditions Applicable to Automatic Extensions to Sections 2.10 Public
Liability and 2.11 Products Liability 3
3.1 Legal Representation Costs – Coronial Enquiry 4 3.2 Quasi Judicial Representation Costs 4 3.3 Limit of Cover under this Section 4
4.1 Continuous Cover 4 4.2 Run Off Cover 4
Conditions
. 5.1 Claims Handling, Defence and Settlement Clause 5
. 5.2 Limit of Liability 5
. 5.3 Automatic Reinstatement 6
. 5.4 Excess 6
. 5.5 De-registration 6
. 5.6 Singular & Plural 6
. 5.7 Law of the Policy 6
. 5.8 Schedule must be included 6
. 5.9 GST Basis of Settlement 6
Section 6
Exclusions applicable to all Automatic Extensions
other than 2.10 Public Liability and 2.11 Product Liability
. 6.1 Refund of Professional Fees and Trading Debts 7
. 6.2 Employers’ Liability, Directors’ & Officers’ Liability,
Occupiers’ Liability, Motor, Marine, etc. 7
Exclusions applicable to entire policy
. 7.1 Known Claims and Known Circumstances 7
. 7.2 Foreign Courts 7
. 7.3 Assumed duty or obligation 7
. 7.4 Related parties 8
. 7.5 Punitive & Exemplary Damages 8
. 7.6 Intentional Damage 8
. 7.7 Asbestos 8
. 7.8 Terrorism 8
. 7.9 Radioactivity 8
. 7.10 War & Uprisings 8
. 7.11 Sexual misconduct 8
. 7.12 Territorial Limits 8
. 7.13 Medical Instruments 8
. 7.14 Medical Practitioners 8
. 7.15 SA Wrongs Act 9
Definitions applicable to entire policy
. 8.1 Bodily Injury 9
. 8.2 Civil Liability 9
. 8.3 Claim 9
. 8.4 Known Circumstance 9
. 8.5 Medical Practitioner 9
. 8.6 Period of Insurance 9
. 8.7 Policy 9
. 8.8 Product 10
. 8.9 Property Damage 10
. 8.10 Proposal 10
. 8.11 Terrorism 10
. 8.12 The Insured 10
. 8.13 The Insured’s Profession 10
. 8.14 The Insurer 10
Section 7
Section 8
Section 9
Section 10
Section 11
Section 1
Insuring clause
. 1.1 Whereas The Insured has made to The Insurer a Proposal containing particulars and statements which are to be considered as incorporated in this Policy and has paid the premium stated in the Schedule for the indemnity provided under this Policy then
The Insurer agrees, subject to the following limitations, terms, conditions and exclusions and subject to any Policy endorsements:
. 1.2 To indemnify The Insured in respect of Claims for Civil Liability (of the type described in Section 2 of this Policy) which is incurred by The Insured in the conduct of the The Insured's Profession and which claims:
a. are made against The Insured during the period of insurance, and
b. The Insurer is advised in writing as soon as reasonably possible during the period of insurance, and
c. arise from an act, error or omission on or after the Retroactive Date specified in the schedule.
. 1.3 In addition, The Insurer will pay, up to an amount equal to the Total Limit of Indemnity stated in the Schedule, the costs and expenses incurred with the written consent of The Insurer in the defence or settlement of all Claims under the Policy. However, the liability of The Insurer under this clause in respect of Claims under the Policy, other than Claims indemnified under Section 2.11 or 2.12 of the Policy, shall be limited to an amount equal to the Malpractice Limit of Indemnity stated in the Schedule.
If a payment in excess of the amount of indemnity available under this Policy has to be made to dispose of a Claim, then The Insurer's liability for such costs and expenses incurred with its consent shall be such proportion thereof as the amount of indemnity available under this Policy bears to the amount paid to dispose of the Claim.
Section 2
Automatic extensions
The indemnity provided under this Policy is in respect of the following types of Civil Liability Claim and is subject to all the terms, conditions and exclusions of this Policy.
. 2.1 Professional Duty
Civil Liability arising from actual or alleged breach of professional duty of care by reason of any act, error or omission of The Insured in the conduct of The Insured's Profession.
. 2.2 Libel and Slander
Unintentional defamation, libel or slander arising from the conduct of The Insured’s Profession.
.
. 2.3 Dishonesty
Civil Liability directly arising out of or contributed to by the dishonest, fraudulent, criminal, malicious or illegal conduct of The Insured’s employees, fellow partners or co-controlling officers in the conduct of The Insured’s Profession.
Provided that this Policy shall not provide indemnity to any person committing or condoning such dishonest, fraudulent, criminal, malicious or illegal acts.
. 2.4 Loss of Documents
Civil Liability arising from documents, the property of or entrusted to The Insured, having been destroyed, damaged, lost or mislaid.
No liability shall attach for any loss brought about by wear and tear and other gradually operating causes. This Extension is exempt from any Excess that may apply to this Policy.
. 2.5 Trade Practices Act and Related Legislation
Civil Liability for unintentional breaches of Part V of the Trade Practices Act 1974 (Commonwealth) or any corresponding provisions of the Fair Trading Acts enacted by the States or Territories of Australia, which arise from misleading or deceptive conduct and which relates solely to
the conduct of The Insured’s Profession (not being deliberate or fraudulent conduct). There is no indemnity, however, for or in respect of any portion of such Claims which are made pursuant to the penal or criminal provision of those Acts.
. 2.6 Emergency First Aid (Good Samaritan Acts)
Civil Liability arising from the rendering of emergency first aid assistance by any person who is The Insured and who is a holder of a First Aid Certificate to any other person (other than relatives of any of The Insured who reside with him/her). However, The Insurer shall not be liable where such person who is The Insured was acting under a contract of employment with any employer, other than The Insured.
. 2.7 Teachers’ Liability
Civil Liability of The Insured arising out of any Bodily Injury of any student caused by any act, error or omission committed by The Insured in the conduct of The Insured’s Profession for duties as a teacher.
This extension shall not provide indemnity for liability arising from any act error or omission committed by a student upon a student, unless the students were being supervised by The Insured at the time such act, error or omission was alleged to have been committed.
. 2.8 Principal’s Incoming
Civil Liability of a principal of The Insured, as otherwise indemnified by this Policy, arising from their capacity as a principal of a prior professional practice practising in the same professional discipline as The Insured’s Profession.
. 2.9 Prior Corporate Entities
Civil Liability, as otherwise indemnified by this Policy, incurred by entities through which The Insured previously traded (but which no longer trade), in the course of the conduct of The Insured's Profession.
. 2.10 Public Liability
Civil Liability arising from Bodily Injury and/or Property Damage caused by or in connection with The Insured’s Profession, but not against Claims arising out of or in connection with any Product.
Specific Exclusions to Public Liability Extension This Policy shall not indemnify The Insured in respect of:
1. Any Bodily Injury or Property Damage directly or indirectly arising out of the ownership, possession or use of a motor vehicle or trailer where at the time of such Bodily Injury or Property Damage the liability for such Bodily Injury or Property Damage was required by law to be insured or in relation to which there existed a statutory scheme providing compensation for such loss.
2. Any liability directly or indirectly arising out of the ownership, possession or use by or on behalf of The Insured of any motor vehicle or trailer, other than Claims:
a. Caused by the use of any tool or plant forming part of or attached to or used in connection with any motor vehicle or trailer.
b. Arising beyond the limits of any carriageway or thoroughfare caused by or resulting from the loading or unloading of any motor vehicle or trailer.
c. For loss of use or damage to any bridge, weighbridge, road or anything beneath caused by the weight or any motor vehicle or trailer or of the load carried thereon.
d. For loss of use or damage to any motor vehicle or trailer temporarily in The Insured’s custody or control for the purpose of parking and directly arising out of such parking.
3. Loss of use or damage to property owned, leased or hired by or under hire purchase or on loan to The Insured or otherwise in The Insured’s care, custody or control other than:
a. Premises temporarily occupied by The Insured for the purpose of carrying out works thereto or thereon (or to or on the contents thereof) or other property temporarily in The Insured’s possession for work thereon (but no indemnity is granted for loss of use or damage to that part of the property on which The Insured is working and which arises out of such work).
b. Employees’ and visitors’ clothing and personal effects.
c. Premises tenanted by The Insured to the extent that The Insured would be held legally liable in the absence of any specific agreement.
. 2.11 Products Liability
Civil Liability arising from Bodily Injury and/or Property Damage caused by or in connection with any Product sold or supplied in connection with The Insured's profession.
Specific Exclusions to Products Liability Extension This Policy shall not indemnify The Insured for or in respect of:
1. Costs incurred in or in connection with the repair, reconditioning, replacement, removal or recalling of any Product or component part.
2. Any Claim arising out of improper or inadequate design, formula or specification or the failure of any Product to fulfil its intended function or to perform as specified warranted or guaranteed, but this exclusion does not apply to consequent Bodily Injury or Property Damage caused by the Product which is sudden and physical by nature.
3. Any Claim arising out of any liability assumed under a contract or agreement which would not otherwise attach in the absence of that contract or agreement.
4. Any Claim arising out of any Product which is incorporated into the structure, machinery or controls of any aircraft, aerial device, watercraft or hovercraft.
. 2.12 Specific Exclusions Applicable to Automatic Extensions 2.10 Public Liability and 2.11 Products Liability
No liability shall attach to The Insurer for or in respect of any Claim for or arising from or in respect of:
1. Workers’ Compensation and Industrial Awards for Bodily Injury sustained by an employee of The Insured arising out of or in the course of his or her employment by The Insured under any contract of service or apprenticeship or in respect of which there is entitlement to compensation under any territory, state or federal legislation. This exclusion shall also apply to any Claims arising indirectly from such injuries.
2. Pollution arising out of any Bodily Injury or Property Damage directly or indirectly caused by or relating to the actual, alleged or threatened discharge, dispersal, release or escape of Pollutants, provided always that this paragraph shall not apply to:
a. Liability for Bodily Injury or Property Damage where such discharge, dispersal, release or escape is caused by an instantaneous, unintended and unexpected happening at a specific time and date during the Period of Insurance.
b. Testing, monitoring, clean-up, removal, containment, treatment, detoxifying or neutralising of Pollutants whether or not any of the foregoing are or should be performed by The Insured or by others.
c. The actual, alleged or threatened discharge, dispersal, release or escape of Pollutants caused by any products that have been discarded, dumped, abandoned or thrown away by others.
The word 'Pollutants' wherever used in this exclusion means any solid, liquid, gaseous or thermal irritant or contaminant including smoke, vapour, soot, fumes, acids, alkalis, chemicals or waste. Waste includes materials to be recycled, reconditioned or reclaimed.
Furthermore, The Insurer’s total liability in respect of all Bodily Injury and/or Property Damage arising from all contamination or pollution happening during any one Period of Insurance shall not exceed in the aggregate the Limit of Indemnity stated in the Schedule.
3. Claims arising out of the ownership, possession or use by or on behalf of The Insured of any aircraft, aerial device, watercraft or hovercraft.
4. Any liability to pay compensation for Personal Injury or Property Damage in respect of any Claim of whatsoever nature, which consists of or arises directly or indirectly out of or in connection with:
a. total or partial destruction, distortion, erasure, corruption, alteration, misinterpretation or misappropriation of Electronic Data and/or Software;
b. error in creating, amending, entering, deleting or using Electronic Data and/or Software; or
c. total or partial inability or failure to receive, send, access or use Electronic Data and/or Software for any time or at all, from any cause whatsoever, regardless of any other contributing cause or event whenever it may occur.
. 2.13 Specific Conditions Applicable to Automatic Extensions 2.10 Public Liability and 2.11 Products Liability Only
1. Cross Liabilities Clause
Subject at all times to the terms, conditions, exclusions and other provisions of this Policy, each person or party indemnified is separately indemnified in respect of Claims made by any of them against any other of them provided that The Insurer’s total liability shall not exceed the Limit of Indemnity stated in the Schedule.
2. Agreements
The indemnity granted under these Extensions extends to any party who enters into an agreement with The Insured for the purpose of The Insured’s Profession, but only to the extent that the agreement requires The Insured to grant such indemnity and not in respect of liability for Bodily Injury or Property Damage due to or resulting from an act of neglect or default of such other party and subject always to the provisions of this Policy.
Section 3
. 3.1 Legal Representation Costs – Coronial Enquiry
For those coronial enquiries of which The Insured first becomes aware while this Policy is in force and about which The Insurer is informed in writing as soon as reasonably possible while this Policy is in force, this Policy will indemnify The Insured for reasonable legal costs and expenses incurred with the prior written consent of The Insurer in the representation of The Insured at such coronial enquiry, provided The Insured is legally required to attend such enquiry.
. 3.2 Quasi Judicial Representation Costs
For those professional disciplinary inquiries or adjudications involving The Insured under any physiotherapists' registration and/or licensing Act, (or such other statutory or professional body which claims jurisdiction to inquire or adjudicate in any professional disciplinary matter) of which The Insured first becomes aware while this Policy is in force and about which The Insurer is informed in writing as soon as reasonably possible while this Policy is in force, then notwithstanding Exclusion 6.3 (Sexual Misconduct) this Policy shall indemnify The Insured for reasonable legal costs and expenses incurred with the prior written consent of The Insurer, in the representation of The Insured at any such investigation or defence of any such professional disciplinary matter (not being the subject of Policy exclusions). In respect of any investigation or defence arising from or in respect of actual or alleged sexual misconduct, however, the total amount that The Insurer will pay under this Policy will be limited to $50,000 in aggregate. This amount is inclusive of the Limit of Indemnity and not in addition to it.
. 3.3 Limit of Cover under this Section
The limit of liability of The Insurer under Section 3 shall not exceed $100,000 in aggregate. This amount is inclusive of the Limit of Indemnity and not in addition to it.
Section 4
. 4.1 Continuous Cover
This Policy shall indemnify The Insured for Claims for Civil Liability (as otherwise covered by this Policy under Sections 2.1 to 2.9) arising from any Known Circumstance, provided always that:
1. There has been no fraudulent non-disclosure or fraudulent misrepresentation in respect of such Known Circumstance; and
2. The Insurer has continued in immediate and uninterrupted succession as the professional indemnity insurer to The Insured prior to the Period of Insurance of this Policy; and
3. The Insured first had knowledge of such Known Circumstances during the period that The Insurer was in immediate and uninterrupted succession as the professional indemnity insurer to The Insured; and
4. but for the failure of The Insured to have notified The Insurer of the Known Circumstances when The Insured first had knowledge of such circumstances, The Insured would otherwise have been entitled to indemnity in accordance with the terms and conditions of the policy in force at the time such circumstances ought to have been notified (but due to the expiry of that policy is not now so entitled); and
5. but for the provisions of the Exclusion 6.11 'Previous Claims and Circumstances' of this Policy, The Insured would otherwise be entitled to indemnity in accordance with the terms and conditions of this Policy; and
6. neither the Claim nor the Known Circumstance have previously been notified to The Insurer or to any other insurer.
. If The Insured was entitled to have given notice under any other policy of insurance and thereby have an entitlement to indemnity, in whole or part, then this Continuous Cover extension does not apply to provide indemnity under this Policy.
The indemnity provided under this extension will be in the terms of this Policy, save that the applicable Limit of Indemnity will be the lesser available under the terms of the policy in force at the earlier time referred to in paragraph (b) above, or under this Policy.
. 4.2 Run Off Cover
Where The Insured is a 'Former Physiotherapy Practitioner' (which expression shall mean a sole practitioner who has ceased to practice in public) who has been insured under this facility immediately prior to ceasing practice, then this
Policy shall indemnify The Insured in respect of any Claims for Civil Liability detailed in Sections 2.1 to 2.13 of this Policy and as otherwise covered by this Policy, arising from any act, error or omission, committed by The Insured in the conduct of The Insured's Profession prior to ceasing practice. It is expressly agreed that the indemnity afforded by this Extension is only in respect of Claims first made against The Insured and notified before the expiry, termination or cancellation of this facility between Physiobase.com and The Insurer. In the event of this facility being cancelled or not renewed then no liability shall attach to The Insurer for Claims made against The Insured after such cancellation or expiry date.
Section 5
Conditions applicable to entire policy
5.1 Claims Handling, Defence and Settlement Clause
1. The Insured shall not admit liability for or settle any Claim or forego any subrogation rights or incur any costs or expenses in connection therewith without the written consent of The Insurer.
2. The Insured shall give to The Insurer immediate notice in writing of any Claim made against The Insured and shall, upon request, give to The Insurer such information as The Insurer may reasonably require to investigate the Claim.
3. The Insured must diligently do, and allow to be done, everything reasonably practicable to avoid or lessen The Insured’s liability in relation to a Claim or loss otherwise covered by this Policy.
4. The Insured must immediately give The Insurer all the help and information that The Insurer may reasonably require to investigate and defend a Claim or loss, and to work out The Insurer’s liability under this Policy.
5. The Insurer shall be entitled to claim indemnity or contribution at any time in the name of The Insured from any party against whom The Insured may have such rights.
6. All notifications to The Insurer will be deemed made if notified in writing to:
CGU Professional Risks Insurance,
a Division of CGU Insurance Limited ABN 27 004 478 371
Level 4, CGU Centre
485 La Trobe Street
Melbourne Victoria 3000
7. The Insurer shall be entitled to take over and conduct, in the name of The Insured, the defence or settlement of any Claim.
8. The Insured shall, when instructed by The Insurer, pay promptly (or within the terms
of any proposed settlement) any amount for which The Insured is liable pursuant to the Excess Clause. Any failure or refusal by The Insured to make such payment shall entitle The Insurer to deduct such amount from
any amounts required to settle any Claim, judgement, order or any other payment to be made by The Insurer under the Policy.
9. The Insured shall not be required to contest any legal proceedings unless a Senior Counsel, to be mutually agreed upon by The Insured and The Insurer, shall advise that such proceedings should be contested.
10. In the event that The Insurer elects to settle any Claim, The Insurer may discharge its total liability under the Policy by paying the then available Limit of Indemnity to The Insured.
11. In the event that The Insured wishes to continue to contest any Claim which, in the opinion of The Insurer should be settled, then, with the consent of The Insurer, The Insured may elect to continue to contest the Claim, provided that The Insurer’s liability in respect of any such Claim shall not exceed the amount for which, but for such election, the Claim could have been settled, together with costs and expenses payable in accordance with this Policy and incurred up to the date of such election.
12. The Insurer may, if they believe that any Claim will not exceed the Policy Excess, instruct
The Insured to conduct the defence of the Claim. In such circumstances, The Insurer will reimburse The Insured for all reasonable defence costs in the event that any payment made to dispose of the Claim by way of damages exceeds the Policy Excess.
5.2 Limit of Liability
The liability of The Insurer shall not exceed in aggregate for all Claims under this Policy, the sum stated as the Total Limit of Indemnity in the Schedule.
However, the liability of The Insurer shall not exceed in aggregate for all Claims under the Policy, other than Claims covered under Section 2.10 Public Liability or 2.11 Products Liability of the Policy, the sum stated as the Malpractice Limit of Indemnity in the Schedule. All Claims made against The Insured shall, unless they arise from acts, errors or omissions that are different and totally unrelated, be regarded as one consolidated Claim. The Insurer's total liability for the consolidated Claim shall not exceed the Total Limit of Indemnity stated in the Schedule if the consolidated Claim is covered under Section 2.10 Public Liability or 2.11 Products Liability
of the Policy. If it is not so covered, however, The Insurer's total liability of the consolidated Claim shall not exceed the Malpractice Limit of Indemnity in the Schedule.
5.3 Automatic Reinstatement
Upon notification to The Insurer during the Period of Insurance of a Claim made against The Insured, the amount of the reduction in the Total Limit of Indemnity stated in the Schedule, on account of a payment of that Claim or losses under the Policy, shall be reinstated without payment of additional premium.
Upon notification to The Insurer during the Period of Insurance of a Claim made against The Insured, other than a Claim covered under Section 2.10 Public Liability or 2.11 Products Liability of the Policy, then the amount of the reduction in the Malpractice Limit of Indemnity on account of a payment of that Claim or losses under the Policy shall be reinstated without payment of additional premium.
Any reinstatement amount shall apply only in excess of the total aggregate indemnity available under applicable policies in excess of this insurance and only in respect of payments which are totally unrelated to the payments that gave rise to such reduction.
The reinstatement of the Total Limit of Indemnity stated in the Schedule shall be limited in aggregate to the amount of the Total Limit of Indemnity.
The reinstatement of the Malpractice Limit of Indemnity stated in the Schedule shall be limited in the aggregate to the amount of the Malpractice Limit of Indemnity.
In addition, The Insurer shall pay the costs and expenses incurred with the written consent of The Insurer in defence or settlement of a Claim covered under the Policy as a result of the reinstatement of a Policy Limit of Indemnity.
The aggregate liability of The Insurer for such costs and expenses shall be limited to the amount of the Total Limit of Indemnity stated in the Schedule.
However, the aggregate liability of The Insurer for such costs and expenses in respect of Claims, other than Claims covered under Section 2.10 Public liability or 2.11 Products Liability of the Policy, shall be limited to the amount of the Malpractice Limit of Indemnity stated in the Schedule.
5.4 Excess
In respect of each Claim made against The Insured, the amount of the Excess specified in the Schedule shall be borne by The Insured at their own risk and The Insurer shall only be liable to indemnify The Insured in excess of such amount. Should any Claim made against The Insured involve more than one act, error or omission, then the Excess specified in the Schedule shall apply separately to each such act, error or omission.
5.5 De-registration
The Insured must immediately advise The Insurer in writing if the statutory registration of any one of The Insured, which is relevant to the conduct by The Insured of The Insured’s Profession, is cancelled, suspended or terminated or has had conditions imposed during the Period of Insurance.
5.6 Singular & Plural
The singular includes the plural and the plural includes the singular, except if the context requires otherwise.
5.7 Law of the Policy
This Policy is governed by the law of the State of New South Wales.
5.8 Schedule must be included This Policy is only legally enforceable if it includes a Schedule issued by The Insurer’s authorised agent, Physiobase.com Limited trading as Physiobase.com Limited Australian Branch (ABN 98 740 381 921).
5.9 GST Basis of Settlement
Where payment is made under this Policy for the acquisition of goods, services or other supply, The Insurer will reduce the amount of the payment by the amount of any input tax credit that The Insured is, or will be, entitled to under A New Tax System (Goods and Services Tax) Act 1999 in relation to that acquisition, whether or not The Insured makes the acquisition.
Where payment is made under this Policy as compensation instead of payment for the acquisition of goods, services or other supply, The Insurer will reduce the amount of the payment by the amount of any input tax credit that The Insured would have been entitled to under A New Tax System (Goods and Services Tax) Act 1999 had the payment been applied to acquire such goods, services or other supply.
Section 6
Exclusions applicable to all Automatic Extensions other than Sections 2.10 Public Liability and 2.11 Products Liability
This Policy shall not indemnify the Insured in respect of any:
. 6.1 Refund of Professional Fees and Trading Debts
Claims:
(a) for refund of professional fees or charges (by way of damages or otherwise); or
(b) arising from a liability to pay trading debts, trade debts, or the repayment of any loan.
. 6.2 Employers’ Liability, Directors’ & Officers’ Liability, Occupiers’ Liability, Motor, Marine, etc. Claims:
. (a) Directly or indirectly based upon, attributable to or in consequence of the Insured’s liability as an employer; or
. (b) arising out of or in respect of actual or alleged unlawful discrimination (or other unlawful act, error or omission) by any Insured against any Employee or employment applicant.
. (c) (if any Insured is either an incorporated body or a director or officer or an incorporated body) arising from any act, error or omission of a director or officer of that incorporated body while acting in that capacity; or
. (d) arising from occupation (or alleged occupation) of land or buildings by an Insured; or
. (e) arising from or in respect of an Insured’s liability as an owner or operator of any aircraft, marine craft or motor vehicles of any kind.
Section 7
Exclusions applicable to entire policy
This Policy shall not indemnify the Insured in respect of any:
. 7.1 Known Claims and Known Circumstances
. (a) Known Claims (or losses) as at the inception date of this Policy, or
. (b) Claims (or losses) arising from a Known Circumstance(s), or
. (c) Claims(or losses) directly or indirectly based upon, attributable to, or in consequence of any such Known Circumstance or known Claims (or losses), or
. (d) Claims (or losses) disclosed on the Proposal form or arising from facts or circumstances disclosed in the Proposal form.
. 7.2 Foreign Courts Claims:
. (a) first brought in a court outside Australia or New Zealand (or outside any country specified in the “Jurisdictional Limits” in the Schedule); or
. (b) brought in a court within Australia or New Zealand to enforce a judgement handed down in a court outside Australia or New Zealand; or
. (c) where the proper law of a country other than Australia or New Zealand (or any country specified in the “Jurisdictional Limits” of the Schedule) is applied to any of the issues in any Claim or loss covered by this Policy.
. 7.3 Assumed duty or obligation Claims:
. (a) alleging a liability under a contractual warranty, guarantee or undertaking (unless liability would have existed regardless of the contractual warranty, guarantee or undertaking); or
. (b) about circumstances where a right of contribution or indemnity has been given up by an Insured; or
. (c) about circumstances where someone has done work or provided services under an arrangement or agreement with the Insured which limits any potential right for the Insured to receive contribution or indemnity from that person; or
. (d) arising from any Civil Liability which the Insured agrees to accept outside that which is normal in the course of the conduct of the Insured Professional Business Practice.
. 7.4 Related parties Claims:
. (a) against the Insured by or on behalf of:
(i) any person, firm or incorporated body
covered by this Policy; or
(ii) any company or trust which is operated or controlled by the Insured or the Insured’s Employees, nominees or trustees, and in which the Insured has a direct or indirect financial interest.
. (b) by or on behalf of the Insured and/or Employee against any person, firm or incorporated body covered by this Policy.
. 7.5 Punitive & Exemplary Damages
Claims for punitive, aggravated or exemplary damages or for fines or penalties. In addition, this Policy does not provide cover for any investigation or defence costs associated with such Claims.
. 7.6 Intentional damage
Claims arising from acts, errors or omissions by the Insured with the intention of causing a third party loss, damage or injury, or with reckless disregard for the consequences.
. 7.7 Asbestos
Claims which would not have arisen but for the existence of asbestos.
. 7.8 Terrorism
Claims directly or indirectly caused by or contributed to by, or arising from or happening through or in connection with any act of Terrorism.
Further, there is no indemnity for any Claim arising from or related to any death, injury, illness, loss, damage, cost or expense of whatever nature directly or indirectly caused by, resulting from, or in connection with any action taken in controlling, preventing, suppressing or in any way relating to an act of Terrorism.
. 7.9 Radioactivity & Nuclear Hazards
Claims arising directly or indirectly from or caused by or contributed to by, or happening through or in connection with atomic energy operations employing the process of nuclear fission or handling radioactive material which operations include but are not limited to:
the use of nuclear reactors such as atomic piles, particle accelerators or generators or similar devices; or the use, handling or transportation of radioactive materials; or the use, handling or transportation of any weapon of war or explosive device employing nuclear fission or fusion. Provided always that this Exclusion 7.9 shall not apply to any Claim arising from radio - isotopes or radium or radium compounds when used away from the place where such are made or produced and when used exclusively incidental to ordinary industrial, educational, medical or research pursuits.
. 7.10 War & Uprisings
Claims arising directly or indirectly from or caused by or contributed to by, or happening through or in connection with war, invasion, acts of foreign enemies, hostilities (whether war be declared or not), civil war, rebellion, revolution, insurrection or military or usurped power or confiscation or nationalisation or requisition or destruction of or damage to property by or under the order of any Government or Public or Local Authority, except to the extent that such an order arises as a result of any Civil Liability incurred by the Insured in the conduct of the Insured Professional Business Practice.
. 7.11 Sexual Misconduct Claim
arising from, related to or in respect of actual or alleged sexual misconduct of any nature.
. 7.12 Territorial Limits
Legal liability of whatsoever nature arising directly or indirectly out of any act, error or omission, statement or misstatement committed outside of the territorial limits of Australia or New Zealand. This exclusion shall not apply to Claims for Civil Liability arising directly or indirectly out of or in respect of any assignments or contracts awarded to The Insured that directly relate to the conduct of The Insured’s Profession outside of Australia or New Zealand, (but not within the territorial limits of the United States of America, its territories or protectorates, or in accordance with or pursuant to the laws of the United States of America, its territories or protectorates), provided that any such assignment does not exceed 3 months in aggregate, or 6 consecutive weeks during the Period of Insurance.
. 7.13 Medical Instruments Claim directly or indirectly arising from, related to, based upon, attributable to or in consequence of the reuse of hypodermic needles.
. 7.14 Medical Practitioners
Claim against or arising from the acts, errors or omissions of any Medical Practitioner, regardless of whether such Medical Practitioner is or was employed by The Insured or is acting or acted as a contractor of The Insured.
. 7.15 SA Wrongs Act
Not with standing anything else contained in this Policy:
1. Where at the time of the happening of any act, error or omission giving rise to a Claim against The Insured for which The Insured would otherwise be entitled to indemnity under this Policy, The Insured was acting as an employee within the meaning of Section 27C of the Wrongs Act of South Australia (or any corresponding enactment in South Australia or elsewhere),
The Insurer shall not be liable to indemnify The Insured in respect of any such Claim, unless and until all of the following events have occurred:
a. a judgement has been obtained by the plaintiff in respect of the Claim and The Insured is liable for some or all of the judgement debt;
b. the employer of The Insured (‘the employer’) has been called upon by The Insured to indemnify him and ‘the employer’ has failed to do so in full or part;
c. ‘the employer’ is not entitled to indemnity in respect of the judgement debt or part thereof or he is so entitled and the person liable to indemnify him is incapable of doing so; and
d. ‘the employer’ has been declared bankrupt or put into liquidation.
2. Where The Insurer becomes liable under this Policy in respect of a Claim, The Insurer’s liability shall be limited to such amount of the judgement debt as has not been paid by or on behalf of ‘the employer’.
3. The Insurer’s participation in any negotiations or Court action (whether The Insurer appears on the Court Record or not) relative to a Claim affected by the provisions of this Policy shall not constitute waiver of The Insurer’s rights under this Policy nor an admission of liability on The Insurer’s part.
4. The provisions of this Exclusion do not affect the obligations of The Insured under the terms and conditions of this Policy.
Section 8
Definitions applicable to entire policy
Whenever the following words are used in this Policy in bold type and with a capital letter, they have the special meanings set out below:
. 8.1 Bodily Injury
Death, bodily injury, sickness or disease to any person. In the event of a Claim for Bodily Injury arising from latent injury, latent disease or latent sickness, such injury, disease or sickness in respect of each Claim shall be deemed to have occurred on the day such injury or sickness was first medically diagnosed.
. 8.2 Civil Liability
Liability for damages, costs and expenses which a civil court orders The Insured to pay on a Claim (as opposed to criminal liability or penalties). It includes the legal costs of the person making the Claim, for which The Insured becomes liable.
. 8.3 Claim
Any writ, statement of claim, summons, application or other originating legal or arbitral process, cross claim, counter-claim or third or similar party notice issued against or served upon The Insured.
. 8.4 Known Circumstance
Any fact, situation or circumstance which:
a. an Insured was aware of prior to this Policy inception; or
b. a reasonable Insured would have considered at any time prior to the Period of Insurance, might result in someone making an allegation against an Insured in respect of a liability that might be covered under this Policy.
. 8.5 Medical Practitioner
A person who is medically qualified, including, but not limited to, anaesthetists, radiologists, pathologists, surgeons, cardiologists, and general practitioners.
. 8.6 Period of Insurance
The period specified in the Schedule showing the Inception Date and the Expiry Date of the Policy.
. 8.7 Policy
The insurance Policy made up of:
1. this Policy document,
2. the Schedule to this Policy,
3. the endorsements, if any, contained in or attached to the Schedule, and
4. the information given to The Insurer by or on behalf of The Insured in the Proposal and in any other way.
. 8.8 Product
Property after it has left the custody or control of The Insured which has been supplied, manufactured, constructed, erected, installed, sold or distributed by The Insured including any container thereof (other than a vehicle).
. 8.9 Property Damage
Loss of or damage to tangible property, other than a Product, including the loss of use thereof resulting therefrom.
. 8.10 Proposal
The electronic proposal form submitted by The Insured via the Physiobase.com website on the date stated in the Schedule, together with any supplementary material completed by or on behalf of The Insured that was given to The Insurer, and relied upon by The Insurer to effect this Policy.
. 8.11 Terrorism
Any act, or preparation in respect of action, or threat of action designed to influence the government de jure or de facto of any nation or any political division thereof, or in pursuit of political, religious, ideological, or similar purposes to intimidate the public or a section of the public of any nation by any person or group(s) or persons whether acting alone or on behalf of or in connection with any organisation(s) or government(s) de jure or de facto, and which:
1. involves violence against one or more persons; or
2. involves damage to property; or
3. endangers life other than that of the person committing the action; or
4. creates a risk to health or safety of the public or a section of the public; or
5. is designed to interfere with or to disrupt an electronic system.
. 8.12 The Insured
Each of the following, individually and jointly:
1. the person, the members of the partnership, the company, the corporation or other legal entity stated in the Schedule; and
2. any person who is, or becomes, or ceases to be during the Period of Insurance a principal, partner, controlling officer or employee of any entity specified in (a) above, but in each case solely in respect of work carried out for and on behalf of that specified legal entity; and
3. locum practitioners engaged by The Insured where such engagement does not exceed a period in excess of sixty days in the aggregate or of thirty consecutive days during the Period of Insurance.
. 8.13 The Insured's Profession
The Insured's Profession for the purpose of this
Policy shall be:
1. The profession of physiotherapy as determined by the ethical guidelines for members of the Australian Physiotherapy Association, including the provision of physiotherapy treatment or advice:
2.
a. which The Insured is qualified to give (or any other treatment modality which is incidental to The Insured's profession as a physiotherapist) whether for reward or not, including any treatment or advice given voluntarily to a person in an emergency situation;
b. in any tertiary education or formal postgraduate, continuing education, teaching or demonstration of physiotherapeutic technique whether or not for therapeutic purposes and whether for reward or not.
Physiotherapy treatment of animals, provided always that:
a. such animals have first been attended to by a registered or licensed veterinary surgeon; and
b. such animals have subsequently been referred by the attending veterinary surgeon to The Insured for physiotherapy treatment; and
c. such referral is confirmed in writing by the attending veterinary surgeon prior to any physiotherapy treatment performed by The Insured.
d. this Policy does not provide indemnity for any liability arising directly or indirectly from Bodily Injury or mental injury or death to any person or Property Damage or loss of property arising out of, related to or in connection with, the treatment of any animal.
e. the Excess for any Claim indemnified by this endorsement shall be $1,000 or 10 per cent of the amount paid by way of judgement, settlement and costs, whichever is the greater.
. 8.14 The Insurer
CGU Professional Risks Insurance, a Division of CGU Insurance Limited, ABN 27 004 478 371.
Section 9
Cancelling the Policy
. 9.1 The Insured Can Cancel the Policy
The Insured is entitled to cancel this Policy from the date The Insurer receives a written request to cancel the Policy, provided that any such cancellation is subject to the following terms: The Insurer will be entitled to retain premium for pro-rata ‘time on risk’ plus an administration charge calculated at 12.5% of the pro-rata return premium, subject to a minimum administration charge of $250. (Note: stamp duty for mid-term cancellation is not refundable in some states).
. 9.2 The Insurer can cancel the Policy
. (a) Under Section 60 of the Insurance Contracts Act 1984 The Insurer may cancel this Policy at any time, by giving notice in writing to The Insured of the date from which cancellation is to take effect where The Insured has:
. (i) failed to comply with The Insured’s duty of utmost good faith: or
. (ii) failed to comply with The Insured’s duty of disclosure at the time when this Policy was entered into, varied, altered or renewed; or
. (iii) made a misrepresentation to The Insurer during the negotiations for this Policy, but before The Insurer agreed to issue this Policy; or
. (iv) failed to comply with a provision of the Policy; or
. (v) failed to pay the premium for this Policy; or
. (vi) made a fraudulent claim under this Policy, or any other contract of insurance (whether with The Insurer or another insurer) that provided cover during any part of the Period of Insurance of this Policy; or
. (vii)failed to comply with a requirement in this Policy that The Insured notify The Insurer of an act or omission which occurred after this Policy was entered into; or
. (viii)failed to notify The Insurer of any specific act or omission or such notification as is required under the terms of this insurance Policy.
. (b) The Insurer may deliver this notice to The Insured personally, or post it by registered or certified mail (to The Insured’s broker or to the address The Insured last gave The Insurer). Proof that The Insurer mailed the notice is sufficient proof that The Insured received the notice.
(b) Under Section 60 of the Insurance Contracts Act 1984 The Insurer may cancel this Policy at any time where:
(i) it is in force by virtue of Section 58 of the Insurance Contracts Act 1984; or
(ii) it is an interim contract of general insurance.
. 9.3 After cancellation pursuant to Clause 9.2, The Insurer will refund the premium for the time remaining on the Policy, less any non-refundable duties, unless an Insured has made a fraudulent claim under the Policy.
Section 10
The way we handle your personal information
We collect personal information from you for the purpose of providing you with insurance products, services, processing and assessing claims.
You can choose not to provide this information, however, we may not be able to process your requests.
We may disclose information we hold about you to other insurers, an insurance reference service or as required by law. In the event of a claim, we may disclose information to and/or collect additional information about you from investigators or legal advisers.
If you wish to update or access the information we hold about you, contact us.
General Insurance Code Of Practice
CGU Insurance proudly supports the General Insurance Code of Practice.
The purpose of the Code is to raise standards of practice and service in the general insurance industry.
The objectives of the Code are:
. to promote better, more informed relations between insurers and their customers;
. to improve consumer confidence in the general insurance industry;
. to provide better mechanisms for the resolution of complaints and disputes between insurers and their customers; and
. to commit insurers and the professionals they rely upon to higher standards of customer service.
Brochures on the Code are available from your nearest CGU office.
Our Service Commitment
CGU Insurance is proud of its service standards and supports the General Insurance Code of Practice. In an unlikely event that you are not satisfied with the way in which we have dealt with you, as part of our commitment to customer service, we have an internal dispute resolution process in place to deal with any complaint you may have.
Please contact your nearest CGU Insurance office if you have a complaint, including if you are not satisfied with any of the following:
. one of our products;
. our service;
. the service of our authorised representatives, loss adjusters or investigators; or
. our decision on your claim.
Our staff will help you in any way they can. If they are unable to satisfy your concerns, they will refer the matter to their supervisor or manager. If the manager cannot resolve the matter, the manager will escalate the matter to our Internal Dispute Resolution Department.
Brochures outlining our internal dispute resolution process are available from your nearest CGU Insurance office.
Intermediary Remuneration
CGU Insurance Limited pays remuneration to insurance intermediaries when we issue, renew or vary a policy the intermediary has arranged or referred to us. The type and amount of remuneration varies and may include commission and other payments. If you require more information about remuneration we may pay your intermediary you should ask your intermediary.
Contacts
NSW Office
388 George Street
Sydney NSW 2000
PO Box H90 Australia Square Sydney NSW 1215
Tel. (02) 8224 4655
Fax (02) 8224 4030
Queensland Branch
Level 12 189 Grey Street South Bank QLD 4101 PO Box 1495
Milton QLD 4064
Tel. (07) 3135 1566 Fax (07) 3135 1564
Victorian Office
Level 4 CGU Centre 485 La Trobe Street Melbourne VIC 3000 GPO Box 4609 Melbourne VIC 3001 DX 38206 Flagstaff Tel. (03) 9601 8700 Fax (03) 9602 5255
Western Australia Branch
Level 4 The Insurance Centre 46 Colin Street
West Perth WA 6005
PO Box 7018 Cloisters Square Perth WA 6850 DX 199 Perth Tel. (08) 9254 3750
Fax (08) 9254 3751
South Australian Branch
Level 8 80 Flinders Street Adelaide SA 5000
GPO Box 9902 SA 5000 DX 394 Adelaide
Tel. (08) 8425 6650 Fax (08) 8425 6592
Insurer
CGU Professional Risks Insurance
A Division of CGU Insurance Limited ABN 27 004 478 371
GD1496_0607
