Insights into the complex world of general liability claims

General liability claims are becoming more frequent and complex. Anna McElhinney, special counsel at Wotton + Kearney in Auckland, is a specialist in the area, and as a presenter at this year’s New Zealand Liability Conference, she will be sharing insights drawn from her extensive personal experience in property damage, public liability and professional indemnity claims.

Born in New Zealand, McElhinney had worked as a judge's clerk and spent time prosecuting for the Crown when she won a Fulbright Scholarship to study for a Master of Law at New York’s Columbia University. 

“That was in the 2009-10 academic year, during the GFC [global financial crisis], so there was no work to be had in New York at the end of my master’s,” she says. “I decided to try London and was lucky enough to get a job — my first role in insurance litigation.”

She moved back to New Zealand in 2012 to join the insurance team of the firm that would eventually become DLA Piper.

“This was quite a general practice, so I had an opportunity to work across lots of different defence and coverage matters,” she says. 

This included representing insurers on both commercial and residential earthquake claims following the Canterbury earthquakes. To help her clients achieve settlements in a wide range of challenging disputes she drew on dispute resolution strategies such as mediation, settlement meetings and judicial settlement conferences.

Early in 2022, the DLA insurance team comprising three partners and 15 other lawyers joined Wotton + Kearney to form New Zealand’s largest insurance law and dispute resolution practice.

“Wotton + Kearney organises its teams into product lines so that allowed me to specialise,” says McElhinney. “That’s when I made an active choice to pursue general liability claims and construction professional indemnity work, both of which I have always enjoyed. I’m now part of the dedicated general liability team led by Misha Henaghan.”

A wide variety of work

McElhinney’s general liability expertise includes advising insurers on indemnity issues arising out of product recalls and third-party claims, as well as conducting the defence of those claims in a variety of forums. She also has experience defending claims against solicitors, engineers, architects and other professionals facing claims from both the private and public sectors.

“I’ve done quite a lot of work in the construction space, and also on claims involving infant formula, wine and beer contamination, and damage to stock due to negligence by third parties, including those who were managing or grazing the animals.”

This year, she has seen an uptick in general liability claims.

“I think it’s likely that these are largely related to economic conditions,” she says. “However, there may be more off the back of climate-related events in New Zealand, particularly last year’s Cyclone Gabrielle. Usually, there's a wave of first-party claims following climate events, but we could start to see more general liability claims — for example, where someone has failed to maintain a retaining wall properly and there has been a landslip on to a neighbour’s property. There may also be claims against councils for failing to adequately maintain infrastructure.”

McElhinney believes that, while New Zealanders might be scared off by the cost of litigation, they’re increasingly willing to pursue all avenues to achieve resolution for a claim.

“Again, I think this is largely driven by economic circumstances,” she says. “Across the board, we see a counter-cyclical rise in the number of litigated matters when there's an economic downturn or pressure in a particular industry. I don’t think many people are shy of litigation in that context.”

A collegial industry

McElhinney enjoys the variety in her work, as well as the industry itself.

“I find the insurance industry extremely collegial with lots of strong relationships between people who are interested in the work and working with each other,” she says. “I value that highly. I also enjoy the technical side of my role as an insurance lawyer on both the coverage and defence liability sides, particularly knotty coverage claims. I've come to enjoy those more and more over time.”

She is also looking forward to presenting at the New Zealand Liability Conference in July.

“I’ll be focusing on the general challenges in the coverage, liability and recovery spaces relevant to general liability claims,” she says. “I’ll also use a few recent case examples to discuss tips on managing general liability claims.”

The New Zealand Liability Conference on 23 July 2024 will feature a packed program of keynote addresses, case studies, panel discussions and networking opportunities.

Learn more about the NZ Liability Conference