Mark Darwin

Practice Areas

Mark is the head of the Australian insurance focus group.

Mark is a commercial litigation lawyer with over 30 years’ experience in helping clients respond to crisis events, contractual issues and interruptions to their business. He is well regarded as the ‘go to’ lawyer for the recovery of costs and financial losses under insurance policies which the client expected to respond in such circumstances, but where insurers push back, delay or decline the claim.

Mark has been part of crisis management and recovery teams following major incidents such as infrastructure failures, cyber attacks, fires, floods, environmental contamination and public health issues. Typically, he is consulted to advise corporate policyholders on liability issues in the early days of the event, and subsequently assists with the insurance claims which then arise to recover losses for property damage and business interruption losses.

The Australian Financial Review ‘Best Lawyers’, Chambers Asia-Pacific and Legal 500 guides all rank Mark as one of the leading insurance lawyers in Australia. Chambers quotes clients describing Mark as “exactly the sort of lawyer you need by your side in a big claim – he is knowledgeable, articulate and tenacious”.

Background:

Mark graduated from Queensland University of Technology in 1985 with a Bachelor of Laws with Second Class Honours. His is an Associate of the Australian and New Zealand institute of Insurance & Finance, and a Graduate of the Directors course of the Australian Institute of Company Directors.

He subsequently completed his Associateship qualification through the Australian Insurance Institute (now the Australian and New Zealand Institute of Insurance and Finance) and has lectured at the Institute courses in Insurance Law.

Work Highlights

Acting for Toll Holdings in the recovery of business interruption losses following cyber attacks in January and May 2020, involving issues around causation and the impact of COVID-19 on the claim.

Acting for the BHP-Mitsubishi Alliance (BMA) following the 2008 Queensland floods to its 8 Central Queensland coal mines. Mark negotiated the recovery of almost $700m for business interruption losses in what is understood to be one the largest single BI insurance claims ever.

Assisting Tabcorp Holdings in the recovery of its business interruption losses following a data outage during the Melbourne Cup Carnival in 2020 when a fire suppressant system resulted in extensive damage to servers stored at a third party data centre.

Assisting Newcrest to negotiate the settlement of a major property damage and business interruption claim after a tailings dam wall failed and the insurer withheld cover on the basis that the proviso to a latent defect exclusion did not apply.

Acting for the owner of Dalrymple Bay Coal Terminal in Queensland following the collapse of a coal reclaimer. Mark was seconded to work in-house for the client to assist in managing the crisis and successfully ran a landmark court case (Prime Infrastructure v Vero Insurance) to recover repair costs as ‘subsequent damage’ under a proviso, despite the collapse having originated due to a faulty weld.

Assisting Santos when an oil pipeline burst in a Brisbane suburb, resulting in contamination of a local park, resident’s houses and local waterways. Mark assisted with the negotiations with the environmental authority when Santos agreed to remediate the damage, and persuaded Santos’ liability insurer to indemnify it for the remediation costs (despite there being no third-party claim made since it voluntarily fixed the damage).

Assisting Serco following a fire to the navy patrol boat HMAS Bundaberg while it was docked at a sub-contractor’s premises for repair. Mark assisted with the investigation of the incident and settled the various contractual issues with the Commonwealth (the vessel owner), then successfully pursued Serco’s liability insurer for indemnity for the ‘reasonable’ settlement that had been reached (DMS Maritime Pty Ltd v RSA).

Acting for the Peanut Company of Australia following the discovery of salmonella at its premises which lead to the nationwide product recall of Kraft Peanut Butter brands. Mark assisted with the negotiations with the Queensland Health Department and Kraft to secure permission to re-open the premises and resume production. He subsequently negotiated the settlement of the liability claim against PCA within the limits of its insurance cover, then pursued the business interruption losses which were incurred during the closure by the health authority (PMB Australia Pty Ltd v MMI Limited).