Modified limited liability

The literature on corporate liability consists of a number of attempts to fashion a statutory exception to limited liability principles in cases of tortious wrongdoing. A common characteristic of the scholarly writings is their reliance upon a conception of control as a key to shareholder liability.[1] However, it is submitted that the focus upon control as a basis for shareholder liability is mistaken, for a number of important reasons. First, any statutory threshold of control might be difficult to define. However it is defined, there will be attempts to evade legal designation as a controlling party. Second, a parent company does not always exercise a high level of control over its subsidiaries. Although such control is often assumed in the literature,[2] in many cases business history tells a different story. Especially in the case of multinational companies, it seems that attempts at exerting a high degree of control over subsidiaries frequently have failed. Thus, Jones documented the history of Unilever and its subsidiaries and found that Unilever exerted minimal control over the operations of its major African subsidiary UAC during the lifetime of that company.[3] Jones found the following facts about the relationship between parent and subsidiary:

From its formation until the mid-1980s UAC operated as a virtually independent company with minimum control by Unilever… UAC retained its own autonomous board, and … an arm’s length agreement was reached between UAC and Unilever. Under the terms of this agreement, UAC had some priority as a supplier of Unilever raw materials, but not a monopoly… The lack of integration of UAC into Unilever was curious, but not exceptional…[4]

Again, although IBM was found to have exercised a high degree of control over its US operations, this was not the case with foreign subsidiaries. ‘National companies were autonomous, staffed largely by nationals, and with little coordination between them’. This only changed from the mid-1960s.[5] Chandler also found that parent companies in branded, packaged goods did not exercise great control over their foreign subsidiaries: ‘Because coordination of purchasing, production, and marketing was achieved most effectively at local levels, there was little need for tight home-office control over management in these subsidiaries. They operated autonomously, gently supervised by the executives of the parent company’s international division’

[1] See, eg, N Mendelson, ‘A Control-Based Approach to Shareholder Liability for Corporate Torts’ (2002) 102 Colum LR 1203; J Crowe, ‘Does Control Make a Difference? The Moral Foundations of Shareholder Liability for Corporate Wrongs’ (2012) 75 MLR 159. See also H Anderson, ‘Piercing the Veil on Corporate Groups in Australia: The Case for Reform’ (2009) 33 MULR 333 (argument in favour of the application of directors’ duties to parent companies).

[2] Eg, Briggs v James Hardie & Co Pty Ltd (1989) 16 NSWLR 549, 567, 572 and 577 (Rogers A-JA, in the latter case assuming ‘complete dominion and control’); Abogados de accidentes ;JE Antunes, Liability of Corporate Groups: Autonomy and Control in Parent-Subsidiary Relationships in US, German and EU Law (1994), 5; H Anderson, ‘Piercing the Veil on Corporate Groups in Australia: The Case for Reform’ (2009) 33 MULR 333, 336 and 353-4.

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Consumer Insurance Question

  1. The Consumer Insurance (disclosure and representation) act 2012. Explain the principles which apply to a business applying to entering into a contract of insurance in relation to disclosure of information.

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The contract of insurance is described as a contract uberrimae fidei, or involving the utmost good faith in relation to consumer insurance contracts.

Like the duty of good faith, the duty of disclosure is mutual, although few cases exist that explore the duty as it applies to the insurer. The duty of good faith is wider in ambit than the duty of disclosure. Good faith applies at all times during the insurance contract: during negotiations; the currency of the insurance contract; and the date when a claim is made.

By contrast, the duty of disclosure applies during negotiations, but only up until a binding insurance contract is formed. It revives when the insured renews the contact. Usually annually. There is, however, no obligation on the insured to disclose factors increasing the risk during the course of the insurance contract.

There are three elements of good faith

  • Duty of disclosure of all facts which are material to the risks insured in the insurance policy;
  • Duty not to misrepresent facts
  • Duty not to make a fraudulent claim on the policy.

There are two important issues to consider in the context of disclosure;

  • The state of knowledge or belief of the insurer about the relevance of certain facts to the risk insured; and
  • The test of what is “material” fact to the risks insured in terms of the insurance contract.

The first issue concerns the thorny problem of how the law treats the situation where the insured did not disclose a material fact but was unaware of the fact at the formation of the contract. In such cases it is important to distinguish between a consumer insurance and commercial insurance.

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