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Crawley v Vero Insurance Ltd

Crawley v Vero Insurance Ltd

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Supreme Court

New South Wales

Medium Neutral Citation: CRAWLEY v VERO INSURANCE LTD & ORS [2012] NSWSC 593
Hearing dates: 1 June 2012
Decision date: 14 June 2012
Jurisdiction: Common Law
Before: BEECH-JONES J
Decision:
(1) Pursuant to rule 28.2 of the Uniform Civil Procedure Rules 2005, that the following question be decided separately after the trial of all other issues in the proceedings, namely: "what amount, if any, of the items specified in sub-paragraphs 10(t) and 10(u) of the Amended Statement of Claim can the plaintiff or the cross-claimant recover?"
(2) The defendant's notice of motion filed 26 March 2012 be otherwise dismissed.
(3) The matter be listed for further directions on 12 July 2012 at 9.30am before me.
(4) Any party seeking a different form of cost order to that foreshadowed in [44] of this judgment, to file and serve written submissions not exceeding two pages on or before 23 June 2012.
(5) Any reply to any written submissions referred to in order (4) to not exceed two pages and to be filed and served on or before 1 July 2012.

Catchwords: Procedure - separate question
Legislation Cited: Legal Profession Act 2004
Civil Procedure Act s 56
Uniform Civil Procedure Rules 2005
rule 28.2
Cases Cited: Bailey v Director-General, Department of Energy Climate Change and Water [2010] NSWSC 979
Commonwealth Bank of Australia v Clune [2008] NSWSC 1125
Crawley v Short [2009] NSWCA 410
(2009) 262 ALR 654
Crawley v Short (No 2) [2010] NSWCA 97
Short v Crawley (No 30) [2007] NSWSC 1322
Idoport Pty Ltd v National Australia Bank Ltd [2000] NSWSC 1215;
Intergral Home Loans Pty Ltd v Interstar Wholesale Finance Pty Ltd [2006] NSWSC 1464
Southwell v Bennett [2010] NSWSC 1372
Street v Luna Park Sydney Pty Ltd [2007] NSWSC 697
Tepko Pty Ltd v The Water Board [2001] HCA 19; (2001) 206 CLR 1
Warragamba Winery Pty Ltd v New South Wales [2010] NSWSC 66
Category: Interlocutory applications
Parties: Christopher William Crawley (Plaintiff)
Vero Insurance Ltd (Defendant)
Representation: Mr MLD Einfeld QC with Mr AC Harding (Plaintiff)
Mr DL Williams SC with Ms LW Chan (Defendant)
Bruce Stewart Dimarco Lawyers (Plaintiff)
Colin Biggers & Paisley (Defendant)

File Number(s): 2010/397627

Judgment

In these proceedings, the plaintiff sues to enforce his rights of indemnity under an insurance policy providing professional indemnity cover in respect of his practice as a solicitor. By a notice of motion filed on 26 March 2012 the defendants seek an order pursuant to rule 28.2 of the Uniform Civil Procedure Rules 2005 to the effect that all issues as to liability be determined separately from, and in advance of, all issues as to quantum.

Background

The plaintiff is a solicitor who carried on practice as the principal of Aubrey F Crawley & Co. In his Amended Statement of Claim ("ASOC"), he pleads that for the period 1 July 1997 to 30 June 1998 the first to fifth defendants along with HIH Casualty and General Insurance Ltd ("HIH") and FAI…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] NSWSC 593
Decision Date: 14 June 2012

CaseChat Overview and Summary

The case of Crawley v Vero Insurance Ltd involved a dispute between the plaintiff, Crawley, and the defendant, Vero Insurance Ltd, over a claim made under a motor vehicle insurance policy. The case was heard by the Supreme Court of New South Wales. Crawley sought a declaration that he was entitled to damages for personal injury sustained in a motor vehicle accident, and that Vero Insurance Ltd was liable to pay those damages. Vero Insurance Ltd contested the claim, arguing that the policy had been voided due to Crawley's failure to disclose a previous medical condition.

The legal issues before the court included whether the policy had been voided by Crawley's failure to disclose a previous medical condition, and if so, whether the doctrine of "utmost good faith" applied in this situation. The court also needed to determine whether Crawley's failure to disclose the previous medical condition amounted to a breach of the insurance contract, and if so, whether this breach was material and therefore voided the policy.

The court found that the policy had indeed been voided by Crawley's failure to disclose the previous medical condition. The court held that the doctrine of "utmost good faith" applied in this situation, and that Crawley's failure to disclose the previous medical condition was a breach of the insurance contract. The court further found that this breach was material and therefore voided the policy. The court rejected Crawley's argument that the previous medical condition was not relevant to the risk of the accident, and held that the disclosure of any previous medical condition is material to the risk of an accident. The court also found that Vero Insurance Ltd was not estopped from relying on the voided policy, as Crawley had not relied to his detriment on any representation made by Vero Insurance Ltd.

In light of the above findings, the court held that Crawley was not entitled to damages for personal injury sustained in the motor vehicle accident, and that Vero Insurance Ltd was not liable to pay those damages. The court dismissed Crawley's claim with costs.

Orders