Civil Liability (Third Party Claims Against Insurers) Act 2017

The Act’s primary beneficiaries are claimants—defined in s 4(1) as persons to whom an insured person has an insured liability. This encompasses anyone with a cause of action for damages, compensation or costs against an insured defendant: road-accident victims, plaintiffs in professional-negligence suits, parties owed contractual damages, and litigants entitled to costs orders. Because the right is additional to other statutory routes (s 11), it is of particular utility to injured workers who already enjoy rights under the Workers Compensation Act 1987 but may need to access additional insurance layers.

Insured persons are the second major class. The definition in s 3 is deliberately broad, capturing both named insureds and unnamed persons “specified or referred to in the contract, whether by name or otherwise, as a person to whom the benefit of the insurance cover … extends.” This catches additional insureds, subcontractors on construction policies, directors under management-liability covers, and family members on motor-vehicle policies. Their position is protected by the discharge rule in s 9: once the insurer pays the claimant, the insured’s own indemnity is correspondingly reduced. Yet the insured also loses control; the insurer may settle with the claimant without the insured’s consent and still rely on all contractual defences (s 7(a)).

Insurers underwriting liability policies in New South Wales form the third affected group. The Act exposes them to direct suits, removes the procedural shield of requiring the claimant first to obtain and enforce judgment against the insured, and subjects them to court oversight on leave applications. Because the insurer “stands in the place of the insured person” (s 4(3)), it inherits both the substantive defences the insured could have run and any procedural or evidentiary disadvantages the insured would have faced. The Act does, however, preserve the insurer’s ability to disclaim liability outright at the leave stage (s 5(4)) and to rely on any policy defences (s 7(a)). Re-insurers are expressly carved out (s 4(4)), so the statute stops at the first layer of insurance.

Courts and tribunals of New South Wales are given an active gatekeeping and adjudicative role. They decide leave applications (s 5), determine whether the insurer has established a right to disclaim, fix the quantum of the insured liability by reference to the policy response (s 4(2)), and manage the fiction that the proceedings are against the insured (s 4(3)). Because “court” includes tribunals, the Act reaches NCAT and industrial tribunals where they determine liabilities that happen to be insured.

Legal practitioners advising any of the above classes must navigate the interplay between the insurance contract, the underlying liability, and the statutory overlay. The limitation rules in s 6, the non-reduction clause in s 10, and the preservation of existing proceedings in s 12 add layers that demand careful file management.

Claimants gain a statutory cause of action against the insurer (s 4(1)) but are subject to three important limitations: the need for leave (s 5), the policy-response cap (s 4(2)), and the ordinary limitation period that would have applied against the insured (s 6(1)). Once leave is granted, the claimant enjoys the full range of procedural and substantive rights that would have been available against the insured (s 4(3)). The claimant is protected against collusive settlements between insurer and insured (s 10) and may continue to pursue the insured for any uninsured top-up (s 8 and s 11).

Insurers have a right to be heard on leave applications and an absolute entitlement to have leave refused if they can establish a right to disclaim (s 5(4)). They may deploy any contractual defence (s 7(a)) or any defence the insured could have used (s 7(b)). The insurer’s payment to the claimant automatically discharges its liability to the insured to the same extent (s 9), providing certainty of accounting within the insurance relationship. Insurers also retain the ability to make payments to the insured without automatically reducing their exposure to the claimant, provided those sums have not been passed on (s 10(b)).

Insured persons retain their contractual right to indemnity but lose exclusivity; the insurer may deal directly with the claimant. The insured can still defend the underlying claim and, if judgment is obtained against them, that judgment does not bar the claimant’s statutory action except to the extent satisfied (s 8). The insured benefits from the fact that any payment the insurer makes to the claimant reduces the insured’s own liability to the insurer for deductible or excess amounts that might otherwise remain payable.

The court’s rights and powers mirror those it would possess in ordinary proceedings against the insured (s 4(3)), including the power to determine quantum, entertain defences, and make costs orders. The leave requirement (s 5) gives the court a discretionary filter that can be used to prevent abuse, such as claims brought after the insured has become insolvent but before policy response has been confirmed.

The Act contains no criminal offences or civil-penalty regimes. Enforcement is entirely civil. A claimant who proceeds without leave faces the prospect that the proceedings will be struck out or stayed (s 5(1)). An insurer who wrongly disclaims may ultimately be ordered to pay the insured liability plus the claimant’s costs of the leave application and the substantive proceedings.

Because the insurer stands in the place of the insured (s 4(3)), ordinary rules as to interest, costs and procedural default apply. A court may enter judgment directly against the insurer for the insured liability once leave is granted and the claim is made out. Satisfaction of that judgment discharges the insurer’s liability to the insured (s 9) and, to the extent of any payment actually received by the claimant from the insured, reduces the statutory claim (s 10(b)).

The only statutory “sanction” is the mandatory refusal of leave where the insurer proves an entitlement to disclaim (s 5(4)). This operates as a complete defence at the threshold stage and is therefore the insurer’s most powerful enforcement tool. Conversely, a claimant who can show that the insurer has no disclaimer right and that the policy responds will almost invariably obtain leave, after which the claim proceeds as though brought against the insured.

The Act is expressly parasitic on contracts of insurance and on the underlying causes of action that generate insured liabilities. It cross-references the Interpretation Act 1987 for general definitional purposes (s 3(1) note) and the Limitation Act 1969 for time bars (s 6). The limitation rule is not freestanding; it imports whatever extension or suspension regimes exist under the Limitation Act or “other Act” (s 6(1)), including judicial extensions already granted in the underlying proceeding (s 6(2)).

Section 11 declares the Act’s rights to be additional to those conferred by the Workers Compensation Act 1987 and “any other law.” This preserves the long-standing direct-action rights given to workers and avoids any argument that the 2017 statute impliedly repealed earlier mechanisms. The interaction with the repealed s 6 of the Law Reform (Miscellaneous Provisions) Act 1946 is handled by the savings provision in s 12, which grandfathers pre-commencement actions and thereby prevents a lacuna.

Because the insurer steps into the insured’s shoes (s 4(3)), any substantive statute that would have applied to the insured—Civil Liability Act 2002 (NSW) caps, proportionate-liability legislation, contributory-negligence rules—applies equally to the insurer. The Act does not disturb the Insurance Contracts Act 1984 (Cth) or the Corporations Act 2001 (Cth) regimes governing policy construction, disclosure, or third-party notices under s 51 of the Insurance Contracts Act; rather, it operates as a procedural and substantive overlay once those regimes have determined that a policy responds.

In insolvency contexts the Act intersects with the Corporations Act’s priority rules for insurance proceeds. A successful s 4 claim can give the claimant direct access to the insurance money outside the insured’s estate, thereby improving the claimant’s position relative to unsecured creditors. The Act does not, however, alter the statutory charge that may arise under s 6 of the Law Reform (Miscellaneous Provisions) Act 1946 for pre-2017 policies; the savings clause in s 12 ensures continuity.

The Act itself repealed s 6 of the Law Reform (Miscellaneous Provisions) Act 1946 and replaced it with a more structured regime. The principal changes were the introduction of an explicit leave requirement (s 5), the statutory statement that the insurer stands in the place of the insured (s 4(3)), the detailed payment and discharge rules (ss 9–10), and the clarification that limitation periods are those applicable to the underlying claim (s 6). These amendments were designed to resolve uncertainties that had arisen in case law concerning the precise procedural status of direct actions, the availability of policy defences, and the effect of settlements between insurer and insured.

The 2017 statute also expanded the definition of “insured person” to make explicit that cover extending to non-parties is caught, removing earlier arguments about privity. The preservation provision in s 12 was included to avoid retrospective disruption to claims already on foot, reflecting a legislative judgment that procedural fairness required grandfathering.

No further amendments have altered the core text since assent. The Act commenced on the date of assent (s 2), ensuring immediate application to new claims while protecting existing ones.

The source text contains no reference to specific court challenges. However, the structure of the Act itself anticipates certain points of contention. The mandatory refusal of leave where the insurer “can establish that it is entitled to disclaim liability” (s 5(4)) invites satellite litigation about the precise standard of proof required at the leave stage and whether the court must conduct a mini-trial on coverage. Section 4(3)’s direction that the parties have the “same rights and liabilities” as in proceedings against the insured raises questions about whether the insurer can plead limitations that have accrued only against the insured after the insured became insolvent, or whether policy exclusions expressed to operate only after judgment can be relied upon.

The non-reduction clause in s 10 has the potential to generate dispute where an insurer pays the insured under a reservation of rights and the insured then dissipates the funds. The statute provides that the insurer’s liability to the claimant is unaffected “unless and to the extent that the amount of the payment is or has been paid by the insured person to the claimant,” leaving open the question whether a payment into a trust account or to the insured’s lawyers constitutes payment “to the claimant.”

Section 7’s dual defence stream has produced controversy in borderline cases where a policy defence (e.g. late notification) would have defeated the insured’s claim for indemnity but the insured could have relied on a substantive defence (e.g. volenti) against the claimant. The Act permits the insurer to run either, yet the forensic choice may affect costs and leave applications.

Because the Act is relatively recent and short, reported decisions have tended to focus on the leave threshold and the interaction with insolvency. The text itself supplies no resolution to these controversies; they must be resolved by reference to the statutory language read with the Interpretation Act 1987 and ordinary principles of insurance law.

Most practitioners assume that once leave is granted the insurer is fixed with the insured’s admissions; the Act does not say so. Section 4(3) gives the insurer the same rights the insured would have had, but if the insured has already admitted liability in separate proceedings the insurer may still contest quantum and may, depending on the policy, argue that the admission was made without its consent and therefore falls outside cover—an argument that must be run through the s 7(a) contractual-defence gateway.

Another trap is the interaction between s 6(2) and partially satisfied judgments. A claimant who obtains judgment against an insolvent insured, recovers a small dividend, and then seeks to use s 6(2) to evade the limitation period against the insurer may find the insurer arguing that the underlying cause of action has merged in the judgment, thereby altering the “insured liability.” The Act does not resolve this merger question; it simply ties the limitation period to the claimant’s cause of action against the insured.

Section 10 is frequently misread. The protection against reduction operates only “unless and to the extent that the amount of the payment is or has been paid by the insured person to the claimant.” If the insured receives policy monies, pays them into a joint account with the claimant’s solicitor, and then becomes bankrupt, the insurer may contend that the monies have not been “paid … to the claimant” within the meaning of the section, leaving the claimant to prove in the bankruptcy while the insurer retains a windfall argument. Careful drafting of settlement deeds is therefore essential.

The breadth of “insured person” catches many insureds by surprise. A subcontractor named only in a project schedule to a head contractor’s policy is an insured person for the purposes of the Act; a claimant injured by the subcontractor can therefore sue the head contractor’s insurer directly even though the subcontractor has no direct contractual relationship with that insurer. This can produce unexpected defendants and requires early identification of all policies that might respond.

Finally, the leave requirement is not a mere formality. Because s 5(4) mandates refusal if the insurer can establish a right to disclaim, claimants who commence without first obtaining coverage advice risk an adverse costs order on the leave application itself. The Act gives the insurer a low-cost opportunity to ventilate coverage issues before the substantive case begins—an opportunity many claimants overlook.

Insurers should maintain a central register of all notifications that could engage s 4 and decide coverage promptly. When a leave application is received, the insurer must be ready to file evidence establishing any disclaimer right under s 5(4). Policy wordings should be reviewed to ensure that notification clauses, consent-to-settle clauses and subrogation waivers interact coherently with the statutory fiction created by s 4(3). Claims handlers must segregate payments made to insureds from those made to claimants so that the discharge under s 9 and the non-reduction rule in s 10 can be applied with precision.

Insured persons should notify insurers immediately upon receipt of any claim that could engage the policy and should avoid making admissions or entering settlements without insurer consent, because such conduct may found a contractual defence under s 7(a). If the insured faces financial distress, early consideration should be given to whether a s 4 claim is likely; the insured may wish to join the insurer to the original proceeding or seek declaratory relief on coverage before the claimant obtains leave.

Claimants’ solicitors must diarise the limitation period that applies to the underlying cause of action and, where possible, commence proceedings against the insured before that period expires so as to engage the s 6(2) exception. Before issuing against the insurer, a coverage opinion should be obtained; if the insurer is likely to disclaim, the leave application should be supported by evidence rebutting the disclaimer. Once leave is granted, the statement of claim should plead the insured liability with precision and particularise the indemnity said to be available under the policy, because the recoverable amount cannot exceed that indemnity (s 4(2)).

All parties should consider the interaction with insolvency regimes. Where the insured is in liquidation or bankruptcy, the claimant may need to obtain the liquidator’s or trustee’s consent or join them to the proceeding so that the court can be satisfied that the liability is still “insured” within the meaning of the Act. Settlement deeds should expressly address whether payments are made under the Act or under the policy, record the extent to which any payment to the insured has been passed on, and contain mutual releases that do not inadvertently trigger the non-reduction rule in s 10.

Finally, practitioners should keep a copy of the repealed s 6 of the Law Reform (Miscellaneous Provisions) Act 1946 for any transitional files, because s 12 of the 2017 Act keeps that provision alive for pre-commencement actions. Compliance is therefore not merely a matter of reading the 2017 statute; it requires an understanding of the legislative history the Act itself preserves.