Contracts – Insurance considerations

Queensland Government agencies frequently enter into contracts with third parties for a range of activities and services.  These contracts may include clauses relating to insurance, indemnities, limits on liability, and waivers.  It is extremely important when entering into these contracts to identify and evaluate the risks and to take action to minimise these risks.

Your Agency’s legal service provider should always be your first point of contact regarding questions about the contract itself, interpretations surrounding particular clauses and the implications for your Agency when entering into such contracts.  Your legal service provider will be able to advise on how best to draft clauses to ensure the best possible terms are negotiated for your Agency.

QGIF cannot provide legal advice but we can advise on the extent of cover provided under our policy and what insurance considerations to be aware of when entering into agreements with third parties.

Below are some frequently asked questions about common insurance-related clauses found in contracts.

Frequently Asked Questions

No.  QGIF is a self-insurance scheme for Queensland Government agencies and not a licensed insurer.  In most instances all that is required is a modification to the relevant clause to clarify that the Agency places insurance via the State’s self-insurer, the Queensland Government Insurance Fund (QGIF).

Public liability insurance provided by QGIF is unlimited.  For information specific to your Agency’s cover, please refer to your Agency’s Insurance Certificate, together with QGIF’s Insurance Policy – Statement of Cover.  Should you have any further questions, please don’t hesitate to call 07 3035 6367 or send us an email.

An insurance clause is often found in a contract and stipulates the type and extent of cover required.

It is prudent risk management when contracting with another party to stipulate in the contract that each party is required to have their own insurance coverage.  This ensures the other party, contractor or supplier is more likely to be able to meet its financial and legal obligations.

Agencies should undertake their own risk analysis and seek legal advice as to the type and extent of cover required and the appropriate limit of liability.  At a minimum, QGIF suggests each party should have public liability cover with a limit of $20 million.  However, in certain circumstances, lower or higher limits may be necessary.

Depending on the nature of the activity being undertaken or service being provided, professional indemnity insurance may also be prudent, particularly where the Agency may be relying on the other party to the contract to provide professional advice, scientific expertise or training etc.

No. Being a self-insurance scheme for Queensland Government agencies, QGIF cannot insure any non-government entities including their employees, contractors, sub-contractors, suppliers or agents.

An indemnity clause is a means of transferring the legal liability risk from one party to another.  Essentially, such a clause provides for one party agreeing to take responsibility for any loss or damage or legal liability incurred by another party.

Ideally, an indemnity clause should closely align with the position at common law i.e. each party is responsible for their own actions or omissions.  Where an Agency has contractually agreed to indemnify a party beyond the common law position, QGIF will not extend its indemnity of the Agency to meet the contractual indemnity in the contract.

We strongly recommend Agencies seek legal advice to ensure they fully understand the legal and financial implications of the entire contract, including any indemnity provisions.

Further information is available from Crown Law – Understanding indemnity clauses.

QGIF will not cover an Agency for an indemnity that extends to another party’s actions or omissions, nor does QGIF cover breach of contract.

You should seek legal advice before agreeing to grant an indemnity as doing so may extend the liabilities of your Agency beyond that which may be covered by QGIF.

It is a provision in a contract whereby one party agrees to waive subrogation rights against the other party in the event of a loss.  In the insurance context, subrogation allows QGIF, as the insurer, ‘to stand in the shoes of the insured Agency’ and to exercise the rights an insured Agency may have against third parties.

It is important to ensure your Agency’s subrogation (i.e. recovery rights) are not waived under the contract as this may limit QGIF’s (and thereby the State’s) ability to recover costs from a liable party.

It is not uncommon for a party to seek to limit their liability in a contract by placing a monetary limit on the liability that party would otherwise have at common law.  This is often referred to as ‘capping liability’ or ‘capping indemnity’.  Sometimes the ‘cap’ may align with the contract value.

QGIF does not consider that it is in the best interests of an agency to agree to such requests because capping liability can have the effect of transferring to the agency, risk that is not inherently its own.

Should there be compelling reasons for the insured agency to limit or agree to limit the other party’s liability, then we suggest that any capping be no less than the limit of liability stipulated under the ‘insurance clause’.  A risk assessment may assist in determining the appropriateness of the proposed cap.

You should exercise caution before agreeing to such a provision and seek legal advice on the risks and implications for your Agency.

No, you will need to contact WorkCover directly for information and advice regarding workers’ compensation insurance.