INSURANCE STANDARDS 20 May 2009

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1 1. APPLICATION OF STANDARDS INSURANCE STANDARDS 20 May All members of Engineers Australia who are members of the Engineering Science and Technology Professional Standards Society (ESTPSS) (the member) must, as a minimum, have and maintain for the duration of their membership, professional indemnity and public liability insurance policies (The Policies) in accordance with these standards. 1.2 The following standards established by Engineers Australia and the ESTPSS must not be considered advice as to how a member should arrange their insurance protection. It is strongly recommended each member seek the assistance of an Insurance Broker to identify their exposure to risk and arrange their own appropriate insurance protection. Engineers Australia and the ESTPSS disclaim all liability relating to reliance upon these standards. 2. INSURERS 2.1 The Policies are to be issued by:- an insurer(s) authorised under Commonwealth legislation; or an Unauthorised Foreign Insurer 1 ( UFI ) subject to the following requirements established by regulation 4D under the Insurance Regulations 2002 (Cwlth) which state that an insurance contract issued by a UFI is allowed if: (1) An Australian insurance broker certifies in writing that the risk insured under that contract cannot reasonably be placed with an Australian insurer. (2) In deciding whether the risk insured under that contract cannot reasonably be placed with an Australian insurer, the Australian insurance broker must be satisfied, on reasonable grounds, that: (a) there is no Australian insurer that will insure against the risk; or 1 Unauthorised Foreign Insurer as defined in the Insurance Regulations 2002 (Cth)

2 (b) the terms (including price) on which any Australian insurer will insure against the risk are substantially less favourable to the insured than the terms on which the UFI will insure against the risk; or (c) insurance with an Australian insurer would be substantially less favourable to the insured than with a UFI because of other circumstances. Example for paragraph (c) The insured and the UFI have a pre-existing relationship, and the maintenance of that relationship will have significant benefits for the insured. (3) The Australian insurance broker must make reasonable inquiries about the matters mentioned in clause 2.1 (2) above. (4) The Australian insurance broker must keep written records of: (a) its inquiries into the matters mentioned in clause 2.1 (2) above; and (b) its reasons for being satisfied of those matters. (5) If requested by the insured, the Australian insurance broker must give a copy of the certificate under clause 2.1 (1) above to the insured. Note Failure by an Australian insurance broker to properly discharge the obligations in Regulation 4D of the Insurance Regulations 2002 (Cwlth) may be a matter affecting the financial services licence of that broker. See generally Part 7.6 of the Corporations Act (6) In this clause: Australian insurance broker means a person that holds an Australian financial services licence (within the meaning given by the Corporations Act 2001(Cwlth)), and who is permitted under section 923B of that Act to assume or use the expression insurance broker or general insurance broker in relation to the person s business or services. Australian insurer means a person authorised or permitted under the Insurance Act 1973 (Cwlth) (including by way of a determination under subsection 7 (1) of the Act) to carry on insurance business in Australia. 2.2 Where a policy is issued by a UFI in accordance with clause 2.1 above the ESTPSS member shall provide to the ESTPSS a written confirmation from the UFI that insurance and claims information as required by the ESTPSS upon each renewal of membership will be provided by the UFI to the member or the ESTPSS for the purposes of submission to the Professional Standards Council.

3 3. PROFESSIONAL INDEMNITY INSURANCE 3.1 The Policy must provide indemnity to persons who are members of the ESTPSS and the relevant trading entity(ies) including any Directors, Partners, Principals and all employees past, present and including those who join the firm 2 during the period of insurance. 3.2 The Policy insuring clause must have the effect of providing cover for claims arising from an actual or alleged breach of professional duty by a member acting in the performance of his or her occupation. This includes: (iii) Indemnity for claims arising from work performed by consultants and subconsultants engaged by the firm (cover may exclude indemnity for each consultant/ sub-consultant) Misleading and deceptive conduct under the Trade Practices Act and State/Territory fair trading legislation; and Corporations Act and the Australian Securities and Investments Commission Act where relevant and where insurance is typically available 3. Fraud and dishonesty of employees, consultants and sub-consultants (cover may exclude indemnity for each employee, consultant and sub-consultant). 3.3 The Policy must not contain any exclusion that: has the effect of excluding indemnity for claims arising from the professional activities undertaken by the firm unless cover for such activity is not typically available 3 in the Australian insurance market; has the effect of removing cover for claims arising from bodily injury or property damage where the claim has arisen from an actual or alleged breach of professional duty; 3.4 The business or profession insured by the Policy must encompass all of the professional business activities of the firm - which the member has undertaken since first becoming a member of the ESTPSS. 3.5 The Policy must provide for one reinstatement of the limit of indemnity or an annual aggregate limit of liability which is twice the limit of indemnity. The member may be exempt from this requirement where the policy limit of indemnity is twice the otherwise required limit for that class of membership. 3.6 A policy may have a deductible or excess of:- $5,000; or Any other amount not exceeding 5% of the firm's gross annual fee income earned in the immediate past financial year or 5% of the policy limit of indemnity. 2 3 The term firm means a member operating a business as a sole trader or as an employee, director or partner of a partnership or corporate body. The term typically available is taken to mean where the cover is a common characteristic of the insurance generally provided to the ESTPSS member s profession.

4 Engineers Australia may allow a different amount of deductible or excess from that specified in clause 3.6. or in accordance with parameters agreed by the professional standards council from time to time. 3.7 The Policy or Policies produced as evidence in support of these standards must include retroactive cover from the first date of the member s membership of the ESTPSS. 3.8 The Policy must provide run-off cover, if typically available for that specialty of engineering at the time that the policy was last renewed. For the purpose of this clause the term "run off" refers to a policy extension that provides ongoing cover upon cessation of trading of a business without the need to continue to purchase a replacement policy. 3.9 The Policy must provide cover for investigation and defence costs in addition to the limit of indemnity, alternatively where a policy includes legal costs within the limit of indemnity available, the limit of indemnity must be as specified as required by these standards The Policy must include a limit of indemnity that is equal to or exceeds the insured's maximum liability as limited by their class of membership of the ESTPSS as specified in the table below. Membership Category Capped Limit of Indemnity where Defence Costs are included:- Liability Limit ($M s) a) within the Limit in addition to the Limit 1 $ 1.5M $ 2,000,000 $ 1,500,000 2 $ 4M $ 5,000,000 $ 4,000,000 3 $ 8M $ 10,000,000 $ 8,000,000 4 Up to $ 20M 1.25 times Liability Cap Equal to Liability Cap 3.11 Where a member has adopted a class of membership at any time during the previous ten year period from the commencement of the current membership period that provides for a higher limitation of liability, the policy must have a limit of indemnity that equals or exceeds the limit required for that class of membership. 4. PUBLIC LIABILITY INSURANCE 4.1 The Policy must provide indemnity to the member against claims for bodily injury and/or property damage to third parties or persons arising from an occurrence happening in connection with the member's business activities. 4.2 The Policy must: cover the business activities of the firm; provide a limitation of indemnity of no less than $5m on any one claim; (iii) include a Cross Liability clause; (iv) provide indemnity in respect of Principals.

5 5 MECHANISMS FOR ENSURING COMPLIANCE 5.1 Each year with their annual membership renewal members of the ESTPSS will be required to provide evidence of the currency of their professional indemnity and public liability insurance policies, together with any unusual or specific endorsements and/or exclusions imposed by the insurer, using the checklist provided by Engineers Australia as a guide. 5.2 Engineers Australia has access to a specialist insurance resource who will assist with identifying more complex compliance issues with these insurances on a referral basis. 6 ONGOING REVIEW 6.1 Engineers Australia will continually review the adequacy of the limitations of liability established for its members, their insurance requirements and their claims performances. 6.2 Not all members of the ESTPSS will choose to insure through the arrangements established by Engineers Australia. However, it will remain an essential element of their membership application and renewal that full disclosure is made in relation to their claims incurred or alerts reported during the previous year. The centralized collection of claims and alert data is seen as critical for the ongoing monitoring of the scheme. Authorised by Engineers Australia National Council: 20 May 2009