ARTICLE · 19 MAY 2010

The Unforgiving Nature of Section 81 - Straitjacket or Noose?

Moray & Agnew

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The questions posed by Campbell JA in Nominal Defendant v Gabriel as to whether a s81 admission can ever be altered by an insurer at CARS and whether a s81 admission made in error can later permit an exemption were the precise questions considered in Erturk.

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Tom Lyons

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CIC Allianz Insurance Limited v Erturk & Ors [2010] NSWSC 302

Introduction

The questions posed by Campbell JA in Nominal Defendant v Gabriel as to whether a s81 admission can ever be altered by an insurer at CARS and whether a s81 admission made in error can later permit an exemption were the precise questions considered in Erturk.

Facts

A trucking company held a number of policies with CIC Allianz. Two of its trucks were involved in separate and unrelated accidents. The first accident occurred on 22 October 2006 and the second accident occurred on 17 November 2006. A personal injury claim was made as a result of the October 2006 accident by Erturk. For reasons that remain unclear, the trucking company returned to the insurer an accident report form relating to the accident of the November 2006, which was investigated under the mistaken belief the notice concerned the October 2006 accident. Based upon that investigation, a decision was made to issue a s81

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