Comcover Statement of Cover 2016-17
Table of Contents
Chapter 1 – Preamble
1.The Comcover Fund
2.Introduction
3.Conditions of Cover
Chapter 2 – Statement of Cover
4.The Statement of Cover
5.Defined terms
Chapter 3 – Liability
6.General Liability and Professional Indemnity
7.Directors’ and Officers’ Liability
Chapter 4 – Property
8.Property
9.Property in Transit
10.Fraud
11.Business Interruption
Chapter 5 – Motor Vehicle
12.Motor Vehicle
Chapter 6 – Personal Accident and Travel
13.Personal Accident
14.Travel Outside of Country - Baggage and Personal Effects
15.Travel Outside of Country - Medical Expenses and Medical Emergencies
16.Expatriate
17.Personal Effects and Travel Inside Country
Chapter 7 – General Exclusions
18.General Exclusions – what we do not cover
Chapter 1 – Preamble
1.The Comcover Fund
(1)In this Statement of Cover certain words have defined meanings. When words appear in bold they have the meaning given to them in section 5 (under Chapter2).[1]
(2)TheDepartmentof Finance, through Comcover, managesthe Commonwealth’s self-insurance arrangements.Comcover is part of the Risk, Insurance and Special Claims Branch in the Department of Finance. The Finance Minister has portfolio responsibility for Comcover.
(3)TheComcover Fundwasestablished in1998 to cost-effectively and efficiently manage theCommonwealth’sinsurable risks. Comcover isaninternal governmentmechanismthathelpsprotectthe Commonwealth Budget while atthesame time ensuringCommonwealthentities have acomprehensive programme of financial protection.
(4)All corporate Commonwealth entitiesand non-corporate Commonwealth entities operating within theGeneral GovernmentSector (Fund Members) are required to participatein theComcoverFund, unless they have been exempted by theFinance Minister.Entities not classified within theGeneral GovernmentSectorare not coveredby this Statementof Cover.
(5)TheComcoverFund providesFund Members withcoverfor all normallyinsurable risks,with theexceptionof workers’ compensation, whichisthe responsibilityof Comcare.
(6)TheComcoverFundisa financialmechanismby which annual premiumscollected fromFund Members arepooled tomeetthecostof the Commonwealth’sinsurable losses. Although the risk isretained within theCommonwealth, theComcover Fund spreadsthe risk acrossthe Fund Members, minimisinganyadverse impactona singleentityor on the Commonwealth Budget.
(7)Thecalculationoftheannual premiumpool to keepreservesintheComcover Fund isbased onthe actuariallyassessed riskof lossesassociated withFund Members’operations, assetsand liabilities. Premiumsare allocated to Fund Membersaccording to theirproportionof the assessed risks acrosstheFund. These Premiums, aswellasexcesses, provide price signalsto eachFund Member andemphasise the focusonriskmanagement.
(8)The Comcover Fund also supports the Government’s aim of achieving greater transparency and accountability in the management of the Commonwealth Government’s risks.
(9)The Public Governance, Performance and Accountability Act 2013(PGPA Act) requires that accountable authorities of Commonwealth entities establish and maintain appropriate systems of risk oversight and management and of internal control for the entity.[2] Non-corporate Commonwealth entities must also comply with the Commonwealth Risk Management Policy.
(10)Comcover is committed to working in partnership with Fund Members to help them develop a risk management culture within their organisation. As part of this, Comcover provides Fund Members with access to a wide range of risk management support, including risk management training and networking opportunities, support to Boards, Executives and Senior Managers, professional risk management expertise and entity-specific advice.
(11)Comcover’s mechanism for dispute resolution is available on Comcover’s websiteat
2.Introduction
(1)TheStatementofCoverisaninternal policyarrangement for themanagementof lossesaffectingCommonwealthentitieswithin theGeneral GovernmentSector. TheStatementofCover is not intended to,and doesnot, give rise toanylegallyenforceable rightson thepartofFund Members orindividualsagainst Comcover.
(2)TheStatementofCoverdoesnotconstitute a contractofinsuranceor othertype of legally bindingcontractoragreement.
(3)TheStatementofCover is provided toexplain thetermsunderwhich losses incurred bya Fund Memberwill be fundedout ofthe ComcoverFund.
3.Conditions of Cover
(1)Retroactive date
If you had Directors’ and Officers’ and/or Professional Indemnity Insurance before joining Comcover, then wewill set a date prior to your joining the Fund that will identify the time from which we will accept liability for execution or breach of your duty, or wrongful acts, which give rise to a claim made during your period of cover with us. The applicable date will be that shown in your Schedule of Cover. If you had General Liability insurance before joining Comcover, we will accept liability for events which occurred after the time you joined the Fund. If you did not have cover for the classes of risks specified in this section before you joined the Fund then, subject to the terms and conditions of thisStatement of Cover and your Schedule of Cover, Comcover will only accept liability for execution or breach of your duty, or wrongful acts for occurrences which happen after the time you joined the Fund.
(2)Obligations of Fund Members
(a)You have an obligation to disclose informationin respectofyourriskexposures, which meansthat:
(i)before acceptingcover,you musttell Comcovereverymatter youknow, or could reasonably be expected to know,that is relevantto Comcover'sdecisionto offer cover
(ii)at all timeswhilethisStatementof Cover applies, you must give Comcoverwritten notice, assoonaspossible, of everything that youare awareof in the ordinarycourseof businessthat isrelevanttoyourriskexposures.
(b)Youdo not haveto disclose a matter that:
(i)diminishestherisk,or
(ii)we knowor intheordinarycourse ofourbusinessought to know.
(3)Comcoverlooksto the support and cooperationof ourFund Members in the provisionof services.Itisexpected thatFund Memberswill:
(a)ensure that your staff are aware of statutory requirements and their responsibilities under relevant legislation, regulations and instructions
(b)exercise reasonable careat all timesto protectagainstlosses
(c)do everything thatisreasonably practicableto minimise the extentof aloss
(d)do everything thatisreasonably practicableto investigate thecircumstances where itappearstheillegal or deliberate actions ofany person mayhave caused or contributed to aloss, and if appropriate:
(i)identifythe perpetrators
(ii)prosecute or assistin theprosecutionof any perpetrators
(iii)assistusto seekfull recoveryof thelossfromany perpetratorsto the maximumextentpossible.
(e)comply with thetermsoftheComcover Statementof Cover and allapplicable lawandpolicies
(f)providethe following information within the timeframes requested by Comcover:
(i)claims information as and when required
(ii)completion of Comcover’s annualrisk management benchmarking program
(iii)completion of the annual renewal questionnaire
(g)ensureyourAssets Scheduleiskeptup-to-date withaccurate replacementvalues
(h)ensure your Schedule of Expatriates is kept up-to-date and includes accurate names, start and finish dates and country of posting
(i)disclose all matters relating to a possible or actual claim promptly and comprehensively
(j)participateinarrangementsthatare partof theComcoverservices, includingComcover’s education activities.
.
(4)Claims
Whena claimismade against you, or aneventoccursthat maygive rise toa claim, you must:
(a)provide written details, including detailsof anyother insurance which coverstheclaim, toComcoverassoonaspracticable
(b)not admitliabilityfor, or settle, any claimor incur anycostsin connectionwith aclaimwithout the prior writtenconsentofComcover.
(5)Excess
(a)When aclaimismade against you, or aneventoccursthat maygive rise to aclaim, youmustpaytheexcesspromptly, asand wheninstructed byComcover.[3]
(b)Ifdifferentexcessesapplyto a claim underdifferentcovers,youmust pay thehigher orhighestexcess.
(c)Where more thanoneclaim arisesout of thesame actor omissionor a seriesof related actsoromissions, all of thoseclaimswill together be oneclaim for the purposesof determining theexcess.
(d)Wheremore thanoneclaim resultingfromanycombination ofevents or a seriesof related eventswhich occur duringany120hour period,all of those claimswill together be treated asone claimfor the purposesof determining theexcess.
(6)Subrogation
(a)If Comcover acceptsa claim under thisStatementof Cover, Comcover will have yourrightsof recovery to the extentof theclaim payment made by Comcoverto you or onyourbehalftoanyother party.
(b)Youmust allow andassistComcoverto claimindemnityorcontribution inyourname fromany partyagainstwhomyoumayhave such rights.
(c)Youmust giveusall theassistancewemayreasonably require forthe prosecutionandsettlementof recoveryactions.
(d)Ifanamount isrecoveredthenComcover will be entitled to deductfrom that amountanyadministrative or legalcostsincurred or paid by Comcover infunding therecoveryaction.
(e)Whereyouhavepaid anexcessin relationto that claim, you will be entitled to a refund of that excessin theproportionthatthe net amount recovered (lessexpenses)bearsto theclaim paymentmade by Comcover.
(7)Claimsco-operationand settlement
(a)Comcover isresponsiblefor the defence and settlementofclaims.You must giveusall the assistance wemayreasonablyrequire for the defence and settlementofclaimsand recoveryactions.
(b)If you want to contestaclaim, whichwe believeshouldbe settled,you mayelectto doso butourliabilityfor theclaim willnot exceed the amountfor which,butforyourelection, theclaimcould have been settled togetherwith costsand expenseswemustpayyou up tothe date of yourelection.
(c)In the event that you,or adirector or officerof yours,isparty to a claim which iscoveredonlyinpartunderthispolicy, you(or yourself andyourdirector and officer)andComcoverwill use their bestefforts to agree upona fairandproper allocationofloss, and feesand expenses including defence costswhich shouldbe insuredunderthispolicyand which relate solelyto whatiscovered under thispolicy.
(d)In the event thatanagreementcannot be reached,Senior Counsel (to be mutuallyagreed betweenus)will determine, asanindependentexpert but not anarbitrator, afairand proper allocation. Until the Senior Counsel hasmadehisorher determination,Comcovermay,inits discretion, paysuchlossandfeesandexpensesincluding defence costs asitconsidersappropriate.
(8)Comcover Services
You must not enterinto anyseparatecontract, arrangementor understanding withanysupplierofComcover Services in relationto the managementof a claimorprotectionofyournormallyinsurable risks without the expresswritten approvalofComcover.
(9)OtherInsurance
You mustadviseusassoonaspracticable if any riskthatwe coverisalso covered foryoubyanyother insurance policy.
Chapter 2 –Statement of Cover
4.The Statement of Cover
(1)ThisStatementof Coverhaseffectfrom1 July2016 to 30 June 2017.
(2)TheStatementofCover may be terminated, or amended atany timeby notice:
(a)givenin writing to eachFund Memberbyus
(b)postedon ourwebsite.
(3)AllcoverprovidedunderthisStatementof Cover issubject toyounotbeing preventedfrommaintainingsuchcover byanylawor policy thatappliestoyou, includingbutnotlimited toenablinglegislation,internalpolicies,Accountable AuthorityInstructionsand LegalServicesDirections.
(4)Thetermsand conditionsshownonyour Scheduleof Cover takeprecedenceover anyof thegeneral termsand conditionsintheStatementof Coverto the extentof anyinconsistency.
(5)Theexcessshownagainsteachsectiononyour Schedule of Cover appliesto all individualclaimsfor thatsection.
5.Defined terms
The terms under this section 5 ‘Defined terms’ are Comcover definitions and only pertain to the Comcover Statement of Cover. The terms are not meant to impact on a Fund Member’s individual Accountable Authority Instructions (or other internal policy document(s) issued by a Fund Member).
Assets Schedulemeansthe schedule of assets, theirlocationsand valuesas declared bytheFundMemberandagreed byComcover.
bookdebtsmeans:
(a)the difference betweenoutstandingdebit balancesand the total amounts actually received
(b)costsincurred in tracingand establishingdebit balancesincludingcollection expenses in excessofyournormal collectionexpenses
(c)interestchargesonanyloanyoutake outto off-setimpairedcollectionofyourbookdebts.
claimmeans:
(a)any demand byathird partyagainstaFundMember for compensation,or
(b)a request by youfor indemnityinaccordance withyour Schedule of Coverand this Statementof Cover.
Comcoverincludes service providerscontracted by Comcoverto assistin deliveringservicestoFund Members.
defence costsmeansreasonable legalcostsandotherexpensesincurred in defendingclaims withtheprior writtenconsentofComcover.Defence costs does not include business as usual expenses. Business as usual expenses are considered as, but not limited to, costs incurred in providing discovery, supply of witnesses, including costs to get witnesses to and from interviews and hearings, other costs incurred by a Fund Member in assisting the management of the defence of litigation.
employment practices means:
(a)wrongful or unfair dismissal, discharge or termination, either actual or constructive, of an employment relationship in a manner which is against the law
(b)workplace harassment (whether sexual or otherwise) of an employee
(c)any form of discrimination
(d)denial of natural justice to an employee
(e)wrongful refusal to employ a potential employee
(f)defamation from employment related matters
(g)unfair demotion, failure to promote, unfair deprivation of career opportunity, wrongful discipline, negligent evaluation or failure to grant tenure or employment to an employee, or
(h)misleading representation or advertising about employment in your organisation.
excessmeanstheamountthatyoumustcontributetowards thecostof anyloss.
expatriatemeansan employee of the Fund Member, their spouseorpartner and/or any dependantsoutside hisor herhomecountryand whohasbeen noted onthe ScheduleofExpatriatesprovided toComcoverby theFundMember.
FundandComcoverFundmeantheFundestablishedbytheCommonwealthand managedbyComcoverasaBranchofthe DepartmentofFinancefor thepurposesof protectingFundMembersfromdefined losses.
Fund Membermeanstheorganisationnamed onyour Schedule ofCoverand its subsidiaries.[4]
illness means any sickness or disease.
indemnity periodmeansthe period beginningwiththe occurrence ofthe damage, lossor unauthorised use,interference or lossofaccessand ending not laterthanthe period specifiedinyourScheduleof Cover.
injury means bodily injury, death, sickness, disease, disability, shock, fright, mental anguish, mental injury or emotional distress.
lossmeansall damages, legal costsawardedagainsta Fund Member(orif applicable anofficer)andsettlementsnegotiated with the prior writtenconsentof Comcover.
medical expensesmeansexpensesincurred andpaid to alegallyqualified health professional,hospital orambulanceservice for treatment, includingthe costsof medical suppliesand legallyprescribedmedicinesand drugs.
motorvehiclemeans:
(a)anymechanicallypropelled land-use vehicle, itsstandardtoolsandall accessories, and anythingordinarilytowed by thevehicle, or
(b)a substitutemotorvehicle.
officer means:
(a) a person who is:
(i)an official within the meaning of the Public Governance, Performance and Accountability Act 2013,or
(ii)an employee or director of a subsidiary of a Commonwealth entity, or
(iii)an employee or director of a Commonwealth company or its subsidiary.
(b)a person who is or was a member of a committee or sub-committee (whether or not established by statute) which provides technical or professional advice to a Fund Member or officer of the Fund Member, for purposes in connection with assisting the Fund Member or the officer to exercise their powers or perform their functions
(c)any personwho is or was a voluntary workerof the Fund Member.
periodofcovermeansthe period duringwhich you are covered byComcover, as shownonyour ScheduleofCover.
person includes a natural person, body corporate, corporation sole, or statutory authority.
personal effectsincludestoolsoftrade andfield equipment butexcludesmoney.
propertymeans,all real orpersonal propertyincluding:
(a)money
(b)electronicdata and records
(c)structural improvements onorinland
(d)landscapingand gardens
which isyours, orisinyourcare, custodyorcontrol orisyourresponsibility,but excluding:
(i)land
(ii)watercraftmore than15metres inlength
(iii)aircraft
(iv)rocketsandsatellites
(v)livestock, animals, birds, and fish
(vi)standingtimber
(vii)growingcropsand pastures
unless agreed to by Comcover, shown on yourAssets Schedule and noted on yourSchedule of Cover.
(e)Land doesnot include structural improvementsonorin theland.
ScheduleofCovermeans the termsand conditions ofcoverissued to theFund Memberwhich include detailsofthe type ofcover,maximumlimitsofcover, applicableexcesses, and special endorsementsor otherconditions.
Scheduleof Expatriatesmeansthelist notified toComcoverof expatriatesnominatedbytheFund Memberasrequiringcover.
Subsidiary means an entity as defined under section 8 of the Public Governance, Performance and Accountability Act 2013.
substitute motorvehicle meansa vehicle thatyou have authorisedto be hired, borrowed or used for official purposesbecauseyourusualmotorvehicle isbeing repaired,servicedor hasbrokendown.
travellermeansapersonapproved byyou,includinganyapproved accompanying persons,ontravel outside hisorherhome country, or hisorher countryof assignment (including travel to outlying Australianterritoriesand islands)forup toonehundred andeighty(180) consecutive days.
we,usand/or ourmeansComcover.
you/yourmeansthe Fund Member.
voluntaryworkermeansa person who consentstoundertake dutiesunderyourdirectionor atyourrequestand receivesnilor nominal reward.
wrongfulactmeans:
(a)anerror,eitherbyomissionorcommission
(b)amisstatementormisleadingstatement,or
(c)neglectorbreachof dutyorbreachoftrustbya directororofficerintheir capacityasa directororofficer.
Chapter 3 – Liability
6.General Liability and Professional Indemnity
(1)If youare legallyliable topaycompensationfor:
(a)injuryor illnessordeath
(b)falsearrestor imprisonment, wrongful detention,maliciousprosecutionand humiliation
(c)wrongful entryoreviction
(d)assault and battery thatyou did not commitor direct— exceptto protect natural personsor property
(e)libel,slanderor defamation
(f)infringementofcopyright, title orslogan, passingoff or breach of intellectual property rights(includingmoral rights)
(g)unfaircompetition, piracy, misappropriationof ideasunder an impliedcontract
(h)breachof confidence, invasionof privacyorother similar misuse or disclosure of information,
(i)property whichisdamaged, lostor whichcannot beused, or
(j)alosscaused by theexecutionor breach ofyourduty that arisesfromyouroperations or business,
and
(k)the claim for losswasmade againstyouduringyourperiod of cover, and reported toComcoverduring that period of coveror assoonasreasonably practicable,
then
(l)we will indemnify you for:
(i)damages or judgments, defence costs incurred by you with the prior written consent of Comcover and legal costs awarded against you which arise out of your failure to monitor, control, regulate, sanction or license any entity over which you have a regulatory authority or which arise out of the failure of any entity over which you have regulatory authority, financial or otherwise
(ii)damages or judgments, defence costs incurred by you with the prior written consent of Comcover and legal costs awarded against you for all claims which arise out of the provision by you of, or your failure to provide, medical care or advice (or other medical services) in a professional capacity
(iii)all other damages or judgments, and defence costs.
(2)Totheextentthatitislawfultodo so,directors,officers,employees,membersof committeesand advisorycouncilsappointedbyyou,voluntaryworkers and travellers,are also covered, whileacting ingood faithinfulfilment oftheir dutiesandresponsibilitiesto you.[5]
(3)Exclusions
Wewill not payfor:
(a)legal costsinanyaction you bring (includingacrossclaim, counter claim,set- offor similar action) withoutthe prior writtenconsentofComcover
(b)anyliabilityarisingout of liquidated damagesclausesorsimilar penalty clausesin contractsexceptto theextentthat liability would have attached in the absence of suchclauses
(c)anyliabilityarisingout ofyourbreach of contractunlessliability would have arisenin theabsence of that breach
(d)property damage arisingout of the use of a registeredmotorvehicle or a motorvehicle whichis required tobe registeredunderapplicable legislation
(e)anyfeesorexpensesincludingdefence costs incurred byyou without the priorwrittenconsentofComcover
(f)lossor any partoflossthat representscompensation, reimbursementor return of fees, duties, tariffs, taxes, leviesorchargesoranyother amounts incorrectlycollectedor received byyou, or
(g)anyclaim for or inany wayconnected withunderpaymentof employee entitlements.[6]
7.Directors’ and Officers’ Liability
(1)If youare legallyliable topayfor the consequencesof awrongfulactof a director or officer:
(a)ofyourorganisation, or
(b)whilethe director orofficer heldanoutside directorshipappointedbyorrepresentingyou,
or
(2)if a director orofficerislegallyliableto payfortheconsequencesof awrongfulact:
(a)asadirector orofficerof yourorganisation,or
(b)while the director or officer held anoutside directorshipappointedbyorrepresentingyou,
and
(3)theclaimforlosswasmade againstyou, the director orofficer:
(a)duringyourperiod ofcover
(b)reported toComcoverduring that period ofcoverorassoonasreasonably practicable
(c)evenifthedirector orofficer had ceased beingadirector orofficer, duringor before that period ofcover,[7]
then
(4)wewill indemnify:
(a)you for yourownliabilityfor employment practices
(b)you for yourliability to the director orofficerif he orsheisindemnified byyou
(c)the directororofficerif he or she isnot indemnified by you
(d)youforanylossanddefence costs up tothemaximum amount, provided thatsuch indemnityisnot prevented byanylawof theCommonwealth,including but not limited to, the PublicGovernance, Performance and Accountability Act 2013, theJudiciary Act1903, or theCorporations Act2001(whicheveris appropriate) (includingany Regulations, Orders, Legal ServicesDirectionsor Accountable AuthorityInstructions orpoliciesmadeorissued underthem), to the extent, ifany, theyapply toyou, the director orofficer
(e)thespouse, de facto spouse or domesticpartnerof a director orofficerfor financial loss incurreddue to awrongfulactof a directoror officer, provided that:
(i)theclaimismade againstthe spouse, de factospouse or domestic partner only becauseheorsheisthe spouse, de facto spouseor domesticpartnerof the directororofficer
(ii)thelossrelatesto propertyeither jointlyheld by the director or officerandhisorherspouse, de facto spouse or domesticpartner or transferred by thedirectororofficerto hisorher spouse, de facto spouse or domesticpartner for legitimate purposes.
(5)If youreporttousfactsthat might give rise toaclaimagainstyou or adirector or officerassoonasreasonably practicableafter becomingawareof these factswe will indemnify you, the directoror officerfor anyclaimthat arisesfromthose facts.
(6)Notwithstanding GeneralExclusion18 inrespectofpollutants,we will pay defence costsincurred byadirector orofficer indefendingalossinconnectionwiththe actual oralleged discharge, dispersal, release or escape of any pollutant.
(7)Exclusions
(a)We will not payfor any claimmade againsta director orofficer forinjuryor illnessofanypersonorlossof,damage toor destructionof any physical property, including theofuse of itprovided,however, emotional distress claimsresultingfromemployment practicesthatare made byadirector or officerinyourorganisationagainst you oryourotherdirectorsorofficersare not excluded.[8]