Austin v Verini
[2015] WASC 258
•20 JULY 2015
AUSTIN -v- VERINI [2015] WASC 258
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASC 258 | |
| Case No: | CIV:2721/2011 | 22 JUNE 2015 | |
| Coram: | ALLANSON J | 20/07/15 | |
| 15 | Judgment Part: | 1 of 1 | |
| Result: | Third party liable to indemnify defendant | ||
| B | |||
| PDF Version |
| Parties: | COLLEEN AUSTIN SALLY JENNIFER BANKS RONALD ROY BARRON DESMOND ERIC DAWSON MICHAEL HAWTHORNE CHRISTINE GAY HUMPHREYS LENNARD DAVID HUMPHREYS ROSLYNN KAYE MAYNARD SHIRLEY ANNE PUSEY MARIA RADICI KENNETH FRANK WASLEY LORNA ELAINE WASLEY STEPHEN DOUGLAS BROWN LARRY EDWARD AYOUB CLAUDIO VERINI WFI INSURANCE LIMITED |
Catchwords: | Insurance contract Exclusion clause Whether liability of owner builder for breach of duty is breach as the owner |
Legislation: | Builders' Registration Act 1939 (WA), s 4, s 4A(1)(c) |
Case References: | Beaulieu v Reliance Insurance Co (of Philadelphia) (1971) 3 OR 75 Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258; 75 NSWLR 649 CGU Insurance Limited v Porthouse [2008] HCA 30; (2008) 235 CLR 103 Harm v Winter Kerr [2004] QSC 10 Hartman v GIO Australia Ltd (1996) 9 ANZ Insurance Cases 61-310 Imbree v McNeilly [2008] HCA 40; (2008) 236 CLR 510 Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2001) 243 CLR 361 McCann v Switzerland Insurance Australia Ltd [2000] HCA 65; (2000) 203 CLR 579 Rigby v Sun Alliance & London Insurance Ltd [1980] 1 Lloyd's Rep 359 Sturge v Hackett [1962] 1 Lloyd's Rep 117 Tannous v Mercantile Mutual Insurance Co Ltd (1978) 2 NSWLR 331 Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422 Wilkie v Gordian Runoff Ltd [2005] HCA 17; (2005) 221 CLR 522 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- First Plaintiff
SALLY JENNIFER BANKS
Second Plaintiff
RONALD ROY BARRON
Third Plaintiff
DESMOND ERIC DAWSON
Fourth Plaintiff
MICHAEL HAWTHORNE
Fifth Plaintiff
CHRISTINE GAY HUMPHREYS
Sixth Plaintiff
LENNARD DAVID HUMPHREYS
Seventh Plaintiff
ROSLYNN KAYE MAYNARD
Eighth Plaintiff
SHIRLEY ANNE PUSEY
Ninth Plaintiff
MARIA RADICI
Tenth Plaintiff
KENNETH FRANK WASLEY
Eleventh Plaintiff
LORNA ELAINE WASLEY
Twelfth Plaintiff
STEPHEN DOUGLAS BROWN
Thirteenth Plaintiff
LARRY EDWARD AYOUB
Fourteenth Plaintiff
AND
CLAUDIO VERINI
Defendant
WFI INSURANCE LIMITED
Third Party
Catchwords:
Insurance contract - Exclusion clause - Whether liability of owner builder for breach of duty is breach as the owner
Legislation:
Builders' Registration Act 1939 (WA), s 4, s 4A(1)(c)
Result:
Third party liable to indemnify defendant
Category: B
Representation:
Counsel:
First Plaintiff : Mr T Lampropoulos SC
Second Plaintiff : Mr T Lampropoulos SC
Third Plaintiff : Mr T Lampropoulos SC
Fourth Plaintiff : Mr T Lampropoulos SC
Fifth Plaintiff : Mr T Lampropoulos SC
Sixth Plaintiff : Mr T Lampropoulos SC
Seventh Plaintiff : Mr T Lampropoulos SC
Eighth Plaintiff : Mr T Lampropoulos SC
Ninth Plaintiff : Mr T Lampropoulos SC
Tenth Plaintiff : Mr T Lampropoulos SC
Eleventh Plaintiff : Mr T Lampropoulos SC
Twelfth Plaintiff : Mr T Lampropoulos SC
Thirteenth Plaintiff : Mr T Lampropoulos SC
Fourteenth Plaintiff : Mr T Lampropoulos SC
Defendant : Mr G R Hancy
Third Party : Ms B A Mangan
Solicitors:
First Plaintiff : Bradley Bayly Legal
Second Plaintiff : Bradley Bayly Legal
Third Plaintiff : Bradley Bayly Legal
Fourth Plaintiff : Bradley Bayly Legal
Fifth Plaintiff : Bradley Bayly Legal
Sixth Plaintiff : Bradley Bayly Legal
Seventh Plaintiff : Bradley Bayly Legal
Eighth Plaintiff : Bradley Bayly Legal
Ninth Plaintiff : Bradley Bayly Legal
Tenth Plaintiff : Bradley Bayly Legal
Eleventh Plaintiff : Bradley Bayly Legal
Twelfth Plaintiff : Bradley Bayly Legal
Thirteenth Plaintiff : Bradley Bayly Legal
Fourteenth Plaintiff : Bradley Bayly Legal
Defendant : Camm & Associates
Third Party : Greenland Legal Pty Ltd
Case(s) referred to in judgment(s):
Beaulieu v Reliance Insurance Co (of Philadelphia) (1971) 3 OR 75
Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258; 75 NSWLR 649
CGU Insurance Limited v Porthouse [2008] HCA 30; (2008) 235 CLR 103
Harm v Winter Kerr [2004] QSC 10
Hartman v GIO Australia Ltd (1996) 9 ANZ Insurance Cases 61-310
Imbree v McNeilly [2008] HCA 40; (2008) 236 CLR 510
Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2001) 243 CLR 361
McCann v Switzerland Insurance Australia Ltd [2000] HCA 65; (2000) 203 CLR 579
Rigby v Sun Alliance & London Insurance Ltd [1980] 1 Lloyd's Rep 359
Sturge v Hackett [1962] 1 Lloyd's Rep 117
Tannous v Mercantile Mutual Insurance Co Ltd (1978) 2 NSWLR 331
Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422
Wilkie v Gordian Runoff Ltd [2005] HCA 17; (2005) 221 CLR 522
1 ALLANSON J: On 31 October 2009, a balcony collapsed at a house in Ballajura while the owners were holding a party there. Several people, including the 14 plaintiffs, were standing on the balcony when it collapsed. Each plaintiff suffered personal injury as a result.
2 The house, including the balcony, had been built about 16 years earlier by the defendant, Claudio Verini. The plaintiffs brought these proceedings against Mr Verini for damages for personal injuries.
3 Mr Verini issued a third party notice against WFI Insurance Ltd, claiming indemnity against the plaintiffs' claims under a policy of insurance. WFI asserts that an exclusion clause in the policy applies, and that it is not liable to indemnify Mr Verini.
4 On 9 September 2013, a registrar made case management directions that the liability of the defendant to the plaintiffs, and the liability of the third party to indemnify the defendant in respect of the plaintiffs' claims, be tried as preliminary issues in the action. On the day set down for the trial to commence, on the basis of the facts agreed between the parties and the admissions that had been made on the pleadings, the court entered judgment for the plaintiffs against Mr Verini with damages to be assessed.
5 The liability of WFI to indemnify Mr Verini was the only contested issue.
The policy and the exclusion
6 The substance of the dispute revolves around whether Mr Verini's liability to the plaintiffs falls within an exclusion clause in his policy with WFI. The way in which the parties have substantially agreed facts and defined the issues in the case was influenced by the terms of the exclusion.
7 In a statement of agreed facts, Mr Verini and WFI agreed that, by a contract of insurance between them, WFI agreed to indemnify Mr Verini against:
1. Liability to pay compensation for personal injury directly caused by an unexpected event occurring during the period of insurance from 26 July 2009 - 26 July 2010; and
2. Legal costs incurred with WFI's consent.
8 On 2 December 2009, Mr Verini submitted to WFI a Legal Liability Claim Report with respect to the balcony collapse. On 28 January 2010, WFI denied liability to indemnify and represent Mr Verini with respect to claims for personal injury arising from the balcony collapse.
9 The Personal Legal Liability cover in the contract of insurance contained six exclusions. The last of them (exclusion 6) included:
What is not insured
This policy does not insure You … against any liability …
6. For Personal Injury… directly or indirectly caused by or arising out of: …
A breach of your duty as the owner or occupier of a building or structure we did not insure at the time of the Occurrence that caused the Personal Injury …
10 Mr Verini and WFI agree that if exclusion 6 does not apply, WFI is liable to indemnify Mr Verini against liability to pay damages and costs of the action to the plaintiffs, and his costs of defending the action. The parties further agree that WFI did not insure Mr Verini against loss of or damage to the house or contents at 67 Bermuda Drive, Ballajura, at the time of the balcony collapse.
The evidence and agreed facts
11 Mr Verini was the only witness called. The parties tendered a comparatively small number of documents as an agreed trial bundle. Two statements of agreed facts were also received.
Agreed facts
12 Mr Verini was, from 15 April 1993 to 25 March 1996, one of two registered proprietors and occupiers of a property at 67 Bermuda Drive, Ballajura. The other owner was his then wife, Guiseppina Verini.
13 On 17 June 1993, Mr Verini lodged an application for a building licence to construct a residential building on the property, and plans for the proposed building. On 30 June 1993, the Shire of Swan approved the plans and specifications and issued a building licence to Mr Verini. The Building Licence, when issued, was accompanied by Master Builders' Association of WA Standard Specification for Brick Construction which was approved by the Shire.
14 The approved plans included drawings prepared by a draftsman. One of the drawings included a timber balcony.
15 When the balcony was being constructed, a carpenter, Valentino Gullotti, put skew nails in to secure the eastern end of a support beam to the perimeter beam.
16 On 25 March 1996, the Verinis transferred the property to another owner (the Grays). The title was subsequently transferred on two further occasions. The present owners obtained title in November 2002.
17 On 31 October 2009, the balcony collapsed when a number of people, including the plaintiffs, were standing on it. Each plaintiff suffered personal injury as a result of the collapse of the balcony.
18 A cause of the collapse of the balcony was that the support beam had no vertical support and at its eastern end was secured to the perimeter beam only by skew nails, so that the fixing of the end of the main beam to the perimeter beam was inadequate to support the load it was carrying.
19 I have set out, above, the facts regarding the WFI policy that were agreed between Mr Verini and WFI.
Evidence of Mr Verini
20 Mr Verini gave evidence (in the form of two witness statements) and was cross-examined.
21 Mr Verini was not at the time a registered builder, but obtained a building licence as one of the owners of the house. He engaged a draftsman to design the house. He engaged various tradesmen to carry out different aspects of the building (referred to in the evidence as 'subcontractors', but probably more accurately described as contractors). Mr Verini relied on the expertise of the tradesmen, as he did not have any building qualification or relevant trade.
22 An engineer was engaged, but for limited purposes. The engineer had no role with regard to the construction of the balcony.
23 Relevantly, Mr Verini agreed that the construction of the balcony differed from the plans that had been approved by the local government. The main support beam for the balcony deck had been repositioned so that it ran from the house to a perimeter beam, rather than being fixed to the house at both ends as shown on the plan. Mr Verini agreed that he had not referred the change for consideration by either the designer of the building or the certifying engineer.
24 There was, however, no evidence that it was the repositioning of the main support beam that caused the collapse of the balcony. It was an agreed fact that a cause of the collapse of the balcony was that the support beam had no vertical support and at its eastern end was secured to the perimeter beam only by skew nails, so that the fixing of the end of the main beam to the perimeter beam was inadequate to support the load it was carrying. On the third party's pleaded case, if Mr Verini had obtained engineering design or construction advice, the supporting beam would have been fixed to the house at both ends, or the connection between the supporting beam and the perimeter beam would have had vertical support from the ground (defence to third party claim [13]).
25 Mr Verini was also cross-examined about his completion of the insurance proposal. This cross-examination did not, however, relate to any matter in issue between Mr Verini and the insurer.
Other agreed matters
26 The plaintiffs had pleaded that, as the builder, Mr Verini was under a duty to exercise reasonable care in the construction of the balcony, and in the supervision of the construction, to guard against any reasonably foreseeable risk that it may collapse or otherwise cause injury to persons such as the plaintiffs who may have been on the balcony after its construction (statement of claim [9]).
27 In his defence, Mr Verini had admitted:
1. The building licence was issued to him in his capacity as builder, as well as to him and his then wife in their joint capacity as owners of the property [4].
2. In the period between 30 June 1993 and 30 June 1994, he constructed the proposed building including the balcony on the property.
3. He assisted Mr Gullotti, supplied the materials that were used, as identified and requested by Mr Gullotti, and relied on Mr Gullotti's expertise [5].
4. The balcony, as constructed, did not conform to the diagram of the balcony in the plans that were approved.
5. Mr Verini did not engage a structural engineer or any other person to supervise the building of the house.
28 The defence also formally admitted:
1. That as the builder of the house Mr Verini owed a duty to future visitors to the house to exercise reasonable care to avoid conduct that he could reasonably foresee might cause injury to a visitor [7]; and
2. That in the exercise of reasonable care a builder in 1993 would have ensured that the support beam was secured by means of a vertical support that was additional to support provided by skew nails, such as support by a secured beam, corbel or bracket but says that as an unqualified builder at the time he did not then know this was required [11.6].
29 WFI admitted, in its defence to the third party claim, that Mr Verini was under a duty of care, but formulated that duty in quite specific terms. WFI pleaded that the personal injuries suffered by the plaintiffs, or Mr Verini's liability for those injuries, were directly or indirectly caused by or arising out of his breach of duty as an owner of the home.
30 WFI pleaded that Mr Verini owed a duty to anyone who might go onto the balcony to take reasonable care to ensure it was constructed so that it would not suddenly and unexpectedly collapse [11]; and that he breached that duty of care by arranging for the construction without obtaining engineering design or construction advice [12]. The breach of this duty of care caused the personal injuries suffered by the plaintiffs [13].
31 The duty arose because Mr Verini:
(a) engaged Mr Gullotti to construct the deck;
(b) was an owner of the property when he engaged Mr Gullotti to construct the deck and when the balcony was built;
(c) knew people would go onto the balcony and that they would not know of any defect in it;
(d) instructed Mr Gullotti to construct the balcony with the supporting beam fixed to the house at only one end.
32 WFI pleaded a further duty (the warning duty of care), but did not pursue that plea.
33 There was, initially, some debate regarding whether judgment in favour of the plaintiffs, on the basis of his admissions, bound the third party to the basis on which Mr Verini had admitted liability. That is, he had breached his duty of care as the builder of the house, and not a duty as owner or occupier. I do not regard these admissions as inconsistent with a further finding that being owner of the house was integral to the duty of care owed by Mr Verini. For the reasons which follow, however, I am not satisfied that his duty is properly described as a duty as an owner of the house.
The competing arguments
The construction of the policy
34 The first issue is the proper construction of the policy and the exemption. Both defendant and third party agree on the principles, summarised by Gleeson CJ in McCann v Switzerland Insurance Australia Ltd [2000] HCA 65; (2000) 203 CLR 579 [22]:
A policy of insurance, even one required by statute, is a commercial contract and should be given a businesslike interpretation. Interpreting a commercial document requires attention to the language used by the parties, the commercial circumstances which the document addresses, and the objects which it is intended to secure.
- See also Wilkie v Gordian Runoff Ltd [2005] HCA 17; (2005) 221 CLR 522 [15] (Gleeson CJ, McHugh, Gummow and Kirby JJ); CGU Insurance Limited v Porthouse [2008] HCA 30; (2008) 235 CLR 103.
35 In its submissions, WFI referred to various other matters, including that an insurance contract is based on the utmost good faith of both parties; the nature of the cover (non-commercial personal risk); and the level of premium. None of these matters assists when considering the wording of the particular policy and the exemption, and the limited dispute between Mr Verini and WFI.
36 The insurance is a home and contents policy: see certificate of insurance (tb 90). It includes a Personal legal liability policy as a policy that 'automatically' attached to the home insurance policy and that cannot be purchased separately (tb 34). Where the policy holder has insured both home and contents with WFI, the Personal legal liability policy insures him and members of his family, 'against legal liability to pay compensation for Personal Injury and Damage to Property directly caused by an Occurrence that happens during the Period of Insurance' and 'in any capacity', up to the 'Legal liability limit of indemnity shown on the certificate of insurance' (tb 62). Despite the comparatively low premium, the limit of indemnity is $20,000,000.
37 There is no dispute that, but for the exemption, the plaintiffs' claim would fall within the insured liability.
38 There are general exclusions applying to all policies, none of which is relevant (tb 44). The Personal legal liability policy sets out, in six numbered paragraphs, 'What is not insured'. Item 6 of the exemptions commences 'for Personal Injury or Damage to Property directly or indirectly caused by or arising out of', and is followed by 17 quite discrete matters in separate dot points. There is no unifying theme, with exemptions including 'the ownership or occupation of a boarding house'; 'pollution of air, water or soil'; 'germs, disease, virus, bacteria or other contagion'; 'an article dropped from an aircraft or aerial device'.
39 This trial is concerned with the last of those dot points:
a breach of Your duty as the owner or occupier of a building or structure We did not insure at the time of the Occurrence that caused the Personal Injury …
40 It was also not in dispute that where the policy refers to liability for breach of duty 'as the owner or occupier', the words 'the owner or occupier' are not merely descriptive of the identity or status of the person to whom liability attaches, but carry with them that ownership or occupation is a relevant ingredient of the liability: see Sturge v Hackett [1962] 1 Lloyd's Rep 117; Tannous v Mercantile Mutual Insurance Co Ltd (1978) 2 NSWLR 331; Hartman v GIO Australia Ltd (1996) 9 ANZ Insurance Cases 61-310; Harm v Winter Kerr [2004] QSC 10. The argument for such a construction must be even stronger where the exemption is expressed, not just in terms of liability 'as the owner or occupier', but liability caused by or arising out of the insured's breach of duty as owner or occupier.
41 The cases referred to by the parties, illustrating the application of this approach, included:
1. Sturge v Hackett, where the insured was insured against liability for all sums for which he was liable 'as occupier of the said private dwelling house'. The insured negligently lit a fire on the premises. It did not fall within the policy because liability did not attach to him on the ground that he was the occupier.
2. Hartman v GIO Australia Ltd, where the insured's policy excluded cover if liability was incurred by the insured 'as owner or occupier' of a residential building owned by the insured. The insured had a dinner party at his home at which the child of one of his guests was injured by flames from the insured lighting alcohol on a crepe. Dunford J accepted that words 'as occupier' connoted that occupation was an essential ingredient of the liability. The occupation of premises, and therefore the status of insured as the occupier, will be relevant in many cases. But the present insured was sued not as occupier, but as a casual tortfeasor.
3. Beaulieu v Reliance Insurance Co (of Philadelphia) (1971) 3 OR 75, where a clause providing that cover 'does not apply to the ownership by an Insured of watercraft' did not exclude a claim for negligently operating the craft (by the owner).
4. Harm v Winter, where an independent contractor sustained injury when a plank collapsed while he was standing on it painting the vessel. Cullinane J held the liability of the owner of the vessel for the injuries was not liability 'as owner of the vessel'.
42 WFI strongly relied on the decision of Mustill J in Rigby v Sun Alliance & London Insurance Ltd [1980] 1 Lloyd's Rep 359. The policy covered claims 'arising out of the Insured's liability at law attaching solely as owner (not occupier) of the house'. The insured was sued by a neighbour, who alleged damage resulting from encroachment by the roots of an oak tree. The action was in nuisance. The court considered the nature of a claim in nuisance in order to address two issues: whether the policy covered only claims, however, expressed, in respect of which an allegation of ownership was always material, and an allegation of occupation never material; and whether the present claim was one in which proof of ownership was necessary, and proof of occupancy was not. Because the action was in nuisance, the plaintiffs needed to establish only that the insured was in occupation, as the occupier has sufficient power of control to render him liable.
The duty breached
43 Both parties agree that Mr Verini had a duty of care to the plaintiffs. The issue is whether ownership is integral to that duty of care.
44 The inquiry into the existence of a duty of care is at a higher level of abstraction than the question of breach: Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422 [71] - [73] (Gummow J). In many cases, the duty is recognised: the duty of care owed by a driver to other road users; the duty of an employer to an employee. In other cases:
the proper approach is to undertake a close analysis of the facts bearing on the relationship between the plaintiff and the putative tortfeasor by references to the 'salient features' or factors affecting the appropriateness of imputing a legal duty to take reasonable care to avoid harm or injury.
- Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258; 75 NSWLR 649 [102] (Allsop P). See also Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2001) 243 CLR 361 [20] (French CJ and Gummow J).
45 The multifactorial or salient features approach calls for consideration of such matters as: the foreseeability of harm; the nature of the harm alleged; the degree and nature of control able to be exercised by the defendant to avoid harm; the degree of vulnerability of the plaintiff to harm from the defendant's conduct, including the capacity and reasonable expectation of a plaintiff to take steps to protect himself or herself; the assumption of responsibility by the defendant; the nature of the activity undertaken by the defendant; and the nature or the degree of the hazard or danger liable to be caused by the defendant's conduct.
46 Counsel for WFI submitted that characterising Mr Verini as a builder does not define the true nature of the cause of action against him. He was inexperienced, and not a registered builder, and was the homeowner. These matters are not simply coincidental, but are features which define the scope and content of the duty of care that he owed to the plaintiffs, and the legal basis for their claim against him.
47 Counsel referred, in particular, to the legal context in which Mr Verini built the house at Bermuda Drive. He was not a registered builder, and was prohibited from carrying on business as a builder: Builders' Registration Act 1939 (WA) s 4. He was also not qualified to be a registered builder. By s 4A(1)(c) of the Builders' Registration Act, a local authority could not issue a building licence to him unless it related to a building he proposed to construct for himself, and not for the purpose of immediate resale.
48 One of the factors that may be relevant in determining whether there is a duty of care in a particular case is the degree of control that the defendant exercises over the activity that caused the damage. WFI argued that, because Mr Verini was not a builder, he could not lawfully construct the house other than as an owner builder. It was Mr Verini's ownership that enabled him to obtain the building licence, and carry out the building activity. His ownership established a basis for a duty of care to be imposed.
49 In my opinion, the claim against Mr Verini is not a claim for breach of his duty 'as owner' (WFI did not rely on the exemption for a claim 'as occupier').
50 While, at various times, Mr Verini may have owed duties of care to others arising out of his ownership of the Bermuda Drive property, the issue in this case is the nature of his duty to the plaintiffs. Is ownership a necessary part of that duty.
51 A person carrying out an activity such as building may have a duty of care to those who might be injured as the reasonably foreseeable consequences of careless or unskilful conduct. This may include a duty to future users of the building, even where injury is suffered many years after the building was constructed.
52 If Mr Verini has a duty of care to the plaintiffs, it is a duty that arises out of the activity that he undertook in building the house, including the balcony. To the extent that he did not do the work (and it is not in dispute that Mr Gullotti did the carpentry on the balcony) he was the person who engaged contractors, and who assumed the responsibility to supervise that work or to engage someone competent to do so. The duty is independent of whether Mr Verini was, at any time, the owner or occupier of the building, even though, factually, it coincided with his ownership.
53 The third party and the defendant also joined issue on the standard of care, and whether it is affected by the fact that the defendant was not a registered builder. The defendant accepted that the standard of care imposed on him, as a person who lawfully builds a house, but not qualified and registered as a builder, equates with that of a registered builder (referring to Imbree v McNeilly [2008] HCA 40; (2008) 236 CLR 510). I do not need to resolve any question between the parties on this issue, because it is of no consequence to the result: both parties accept that the defendant had a duty of care to the plaintiffs and breached that duty. I am satisfied the duty was not a duty 'as the owner'. The standard of care does not alter that conclusion.
54 Finally, an issue arose whether, as a matter of construction, the exemption applies only to a breach of duty as the owner or occupier of a building at the time of the occurrence which gave rise to liability. The statement of what is insured requires that the Occurrence (that is, the event that caused personal injury) happens during the period of insurance. The exemption also has a temporal element; that the breach is of a duty as the owner or occupier of a building that WFI did not insure at the time of the Occurrence. WFI submits that, on a fair reading of the clause, the temporal element does not also qualify the word 'owner or occupier'. I agree with that submission.
Conclusion
55 For these reasons, the defendant is entitled to the orders sought in the third party statement of claim.
10
1