Carrington v Sea World Australia Limited

[1997] QSC 187

IN THE SUPREME COURT

OF QUEENSLAND

No 1773 of 1990

Brisbane

Before the Hon. Justice Williams

[Carrington v. Sea World Australia Limited & Ors]

BETWEEN:
  GEOFFREY DONALD CARRINGTON
  Plaintiff

AND:
  SEA WORLD AUSTRALIA LIMITED
  First Defendant

AND:
  GRB ENTERTAINMENT INC
  Second Defendant

AND:
  GARY R.  BENZ
  Third Defendant

AND:
  MICHAEL BRANTON
  Fourth Defendant

AND:
  LIVE STUNTS PRODUCTIONS INC
  Fifth Defendant

AND:
  FOX BROADCASTING COMPANY
  Seventh Defendant
AND:
  WORKERS’ COMPENSATION BOARD
  OF QUEENSLAND
  Tenth Defendant

AND:
  SUNCORP GENERAL INSURANCE LIMITED
   Eleventh Defendant
AND:
  SUNCORP GENERAL INSURANCE LIMITED
  Second Third Party

REASONS FOR JUDGMENT - WILLIAMS J

Judgment delivered 08/10/1997

CATCHWORDS:     INSURANCE - joinder of alleged insurer of defendants as third party - application by insurer to be summarily dismissed - held defendants’ case arguable and matter should go to trial.

Counsel:McMurdo QC for applicant third party

R Douglas QC and T Matthews for respondent-defendants

Solicitors:Barry & Nilsson for applicant third party

Quinlan Miller and Treston for respondent-defendants

Hearing Date:              24 September 1997

IN THE SUPREME COURT

OF QUEENSLAND

No 1773 of 1990

Brisbane

[Carrington v. Sea World Australia Limited & Ors]

BETWEEN:

GEOFFREY DONALD CARRINGTON
  Plaintiff

AND:

SEA WORLD AUSTRALIA LIMITED
  First Defendant

AND:

GRB ENTERTAINMENT INC
  Second Defendant

AND:

GARY R.  BENZ
  Third Defendant

AND:

MICHAEL BRANTON
  Fourth Defendant

AND:

LIVE STUNTS PRODUCTIONS INC
  Fifth Defendant

AND:

FOX BROADCASTING COMPANY
  Seventh Defendant

AND:
  WORKERS’ COMPENSATION BOARD
  OF QUEENSLAND
  Tenth Defendant
AND:
  SUNCORP GENERAL INSURANCE LIMITED
   Eleventh Defendant

AND:
  SUNCORP GENERAL INSURANCE LIMITED
  Second Third Party

REASONS FOR JUDGMENT - WILLIAMS J

Judgment delivered 08/10/1997

The plaintiff, GD Carrington, received massive personal injuries on 20 June 1990 when a water skiing stunt went wrong.  In this action he is claiming damages with respect to the personal injuries he received.  The statement of claim is now in its fourth edition and runs for some fifty pages.  It is not necessary to refer in detail to the allegations contained therein.

The stunt in question was being performed at the aquatic theme park known as “Sea World” on the Gold Coast.  The relevant Australian company was the first defendant, Sea World Australia Limited.  It is alleged in the statement of claim that that specific company has no assets, will not be able to meet any judgment, and has ceased to actively defend these proceedings.  Those allegations were broadly accepted as being correct for purposes of the application before me.

American companies and personnel were also involved in the promotion of the stunt which was to be given extensive media coverage in the United States.  The second, third, fourth, fifth and seventh defendants were referred to throughout the argument as the U.S. defendants and it is convenient to continue using that description.  For present purposes each of those defendants has an identical interest.

Many of the issues identified in the statement of claim relate to the existence of insurance covering the incident in question.  There is an issue as to the relationship between the plaintiff and the first defendant; was he an employee, was he an independent contractor, or was there some other, and if so what, relationship between them?  Findings of fact with respect to those issues could result in the court holding that a particular insurer was obliged to indemnify the first defendant with respect to the plaintiff’s loss.  In that regard the presence of the tenth defendant, Workers’ Compensation Board of Queensland, should be noted.

The statement of claim also raises questions as to what other arguably relevant policies of insurance were held by the first defendant.  There is also an allegation that if it did not hold a policy or policies covering the incident in question it misrepresented the position to the plaintiff.  That is of no immediate concern.

There is no doubt that as at the date of the incident there was policy, described as a Broadform Liability Policy (BR 851722909) issued by Suncorp General Insurance Limited (Suncorp) naming as the principal insured the first defendant, and arguably indemnifying the parties insured thereunder with respect to a claim such as that made by the plaintiff.  The U.S. defendants contend that they are also indemnified by that policy and in consequence caused Suncorp to be joined as second third party.  A statement of claim in those third party proceedings has been delivered, and the U.S. defendants have also responded to requests for further particulars thereof.

Suncorp has now applied by summons to have those third party proceedings struck out.  Counsel for Suncorp submitted that none of the U.S. defendants could be an insured person within the terms of the policy and that those defendants had no prospects of success in the third party proceedings.  Given the expected duration of the trial (six weeks) and the alleged potential for delay in the conduct of the proceedings because of the late joinder of Suncorp, it was argued that this was a proper case in which to summarily dismiss Suncorp from the action.

Policy BR 851722909 refers to the first defendant as one of the named insureds.  The expression “the business” is defined as “theme park and marine stadium and associated activities”.  By the policy Suncorp agreed to indemnify “the Insured for all amounts which the Insured becomes legally liable to pay as compensation for Personal Injury or Property Damage caused by an Occurrence in connection with the Insured’s Business and no other for the purpose of this insurance.”  Importantly there is an extended definition of the term “Insured”, encompassing more than those who are the “Named Insured”.  The relevant paragraphs for present purposes are the following:

“Each of the following is insured under this Policy to the extent set forth below:

(a)The Named Insured;

...

(b)Any Principal in respect of the liability of such Principal arising out of the performance by the Named Insured of any contract or agreement for the performance of work for such Principal, to the extent required by such contract or agreement;

... ”

One of the matters argued before me went to the proper construction of that provision.  Did the expression “to the extent required by such contract or agreement” qualify the word “insured” where it appears in the first line of the quote, or does it qualify the expression “for the performance of work”.  Counsel for Suncorp argued for the former interpretation, whereas the latter construction was advocated by counsel for the U.S. defendants.

I am inclined to favour the construction that the qualifying words relate to the extent of the insurance.  Such an interpretation is supported by the use of the expression “to the extent set forth below” in the introductory words.  It also seems to me that it can be said that the qualifying words in question refer more naturally to the extent of the insurance rather than to the extent of the work.  But in the circumstances I do not make any final determination as to the proper construction of the provision.  I am prepared to accept for purposes of argument that the qualifying words refer to the extent of the insurance.  For reasons which I will now articulate even given that construction the issues raised by the U.S. defendants must go to trial.  In those circumstances it is best to leave the final determination of the proper construction to the trial judge.

It is the contention of the U.S. defendants that pursuant to an agreement (partly oral and partly in writing) between themselves and the first defendant the latter was required to have in place insurance covering amongst other things the possibility of the plaintiff receiving injuries in performing the stunt.  Particulars of that agreement are set out in exhibit E to the affidavit of JR Kennedy and in the affidavit of BM Miller.  It is not necessary to set those particulars out in great detail.

Counsel for Suncorp submitted that the particulars supplied of that agreement indicated that the first defendant was not required by that agreement to effect insurance covering the plaintiff with Suncorp.  Ultimately that might be the finding of the court at the conclusion of the trial but, in my view, that conclusion cannot be reached on an application to have the third party proceedings summarily dismissed.  The construction of a contract between the U.S. defendants made in the United States of America, and the construction of statements made (orally and in writing) by U.S. personnel to representatives of the first defendant have to be considered in detail and in the context of the surrounding circumstances.  In that material there is reference to “Workers’ Compensation” and if that means insurance of the type provided for pursuant to the Workers’ Compensation Act 1916-1982 there may be force in the argument for Suncorp.  But the concept of “Workers’ Compensation” is also recognised in American insurance law (see, for example, Keeton Widiss, Insurance Law ) and it may well be that the expression when used on the occasions I have indicated referred to a broader concept of insurance covering personal injury sustained by any person working on or associated with the project regardless of the technical legal relationship between that person and, for example, the first defendant.

It may well be that when the first defendant supplied the U.S. defendants with the certificate in letter form dated 19 June 1990 (exhibited to the affidavit of Miller) that it was referring to Workers’ Compensation insurance under the Queensland Act.  But that is not necessarily the end of the matter.  If the plaintiff was not covered by such Workers’ Compensation insurance, but there was an agreement between the first defendant and the U.S. defendants that some insurance of that type should be obtained by the first defendant, then Suncorp could well be liable if, on its proper construction, policy BR 851722909 covered the situation in question.  That could only be answered after a trial.

Counsel for Suncorp also referred to the certificate it issued on 12 June 1990 addressed to Jardine Australian Insurance Brokers (exhibited to the affidavit of Miller).  In broad terms that certifies that policy numbers CAK 9155N and CAM 7509P insured the “stunt to be performed at Sea World” but excluded “cover for death of or injury to boat drivers and/or water skiers taking part in the stunt”.  Apparently the number of the Broadform Policy was changed from BR 851722909 to CAK 91555N (see affidavit of SH Kirkwood).  However the copy of the policy before the court (Exhibit F to affidavit of JR Kennedy) does not on its face refer to the “stunt to be performed at Sea World” or exclude “cover for death of or injury to boat drivers and/or water skiers taking part in the stunt.”  Prima facie that letter could not alter the terms of an existing policy.  That letter could not, at least arguably, exclude cover if it was otherwise provided by the terms of policy BR 851722909.

In his written submissions counsel for the U.S. defendants referred to a number of authorities dealing with the approach of the court to an application seeking to have some part of an action summarily dismissed.  The principals are well known and it is not necessary for me to refer to those authorities in any detail.

Suffice it to say that I am not satisfied that Suncorp has clearly demonstrated that the U.S. defendants do not have an arguable claim under policy Br 851722909 and in consequence the issues raised by the third party statement of claim must go to trial.

The application will be dismissed, but I will reserve the question of costs to the trial judge.  The formal orders will therefore be:  application dismissed, costs reserved.