Ffrench v Sestili

Case [2007] SASC 241


SUPREME COURT OF SOUTH AUSTRALIA

(Full Court)

FFRENCH v SESTILI; SESTILI v TRITON UNDERWRITING INSURANCE AGENCY P/L

[2007] SASC 241

Judgment of The Full Court

(The Honourable Justice Debelle, The Honourable Justice Sulan and The Honourable Justice Layton)

28 June 2007

EMPLOYMENT LAW - RIGHTS AND LIABILITIES AS BETWEEN EMPLOYER AND THIRD PERSONS - LIABILITIES OF EMPLOYER - FOR CRIMES AND OFFENCES OF EMPLOYEE

Vicarious liability – employee a carer for disabled person – employee withdrew money from disabled person’s bank account without consent – whether employer vicariously liable for dishonest conduct of employee – appeal by employer dismissed.

INSURANCE - GENERAL - POLICIES OF INSURANCE - CONSTRUCTION

Whether insurance contract of employer provided coverage for the theft of employee – whether misappropriation of the money was loss of tangible property – whether loss had occurred “in connection with” the business – whether insurer was liable for costs of employer defending the claim – appeal by insurer dismissed.

Barwick v English Joint Stock Bank (1867) LR 2 Ex 259; Bazley v Curry [1999] 2 SCR 534; Beaton v Corporation of Glasgow [1908] SC 1010; Briess v Woolley [1954] AC 333; Burswood Management Ltd v Attorney-General (Cth) (1990) 23 FCR 144; Croton v The Queen (1967) 117 CLR 326; Deatons Pty Ltd v Flew (1949) 79 CLR 370; Dubai Aluminium Co Ltd v Salaam [2003] 2 AC 366; Drayton v Martin (1996) 67 FCR 1; Jacobi v Griffiths [1999] 2 SCR 570; Kennison v Daire (1986) 160 CLR 129; Kennison v Daire (1985) 38 SASR 404; Limpus v London General Omnibus Co [1862] 1 H & C 526; 158 ER 993; Lister v Hesley Hall Ltd [2002] 1 AC 215; Lloyd v Grace, Smith & Co [1912] AC 716; Morris v C W Martin & Sons Ltd [1966] 1 QB 716; New South Wales v Lepore (2003) 212 CLR 511; Our Town FM Pty Ltd v Australian Broadcasting Tribunal (1987) 16 FCR 465; R v Davenport [1954] 1 WLR 569; R v Potisk (1973) 6 SASR 389; Slattery v The King (1905) 2 CLR 546, applied.
Black Range Tin v Shoobert [1973] WAR 131; Breen v Williams (1996) 186 CLR 71; Bugge v Brown (1919) 26 CLR 110; Canadian Pacific Railway Co v Lockhart [1942] AC 591; Clay v Clay (2001) 202 CLR 410; Colonial Mutual Life Assurance Society Ltd v Producers & Citizens Co-operative Assurance Co of Australia Ltd (1931) 46 CLR 41; Grant v The Queen (1981) 147 CLR 503; Hollis v Vabu Pty Ltd (2001) 207 CLR 21; Ilich v The Queen (1987) 162 CLR 110; Ilkiw v Samuels [1963] 2 All ER 879; Leesh River Tea Co Ltd v British India SN Co Ltd [1967] 2 QB 250; Parsons v The Queen (1999) 195 CLR 619; Perrin v Morgan [1943] AC 399; Photo Production Ltd v…

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AGLC
Ffrench v Sestili [2007] SASC 241
Case
[2007] SASC 241
Decision Date

CaseChat Overview and Summary

In the case of Ffrench v Sestili, the parties involved were Ffrench, the plaintiff, and Sestili, the employer, with Triton Underwriting Insurance Agency Pty Ltd also playing a significant role as the insurer. The central dispute revolved around the employer's vicarious liability for the dishonest actions of an employee, who acted as a carer for a disabled person. The employee had withdrawn money from the disabled person’s bank account without consent, and the question was whether the employer could be held vicariously liable for this conduct. Additionally, the case examined whether the employer's insurance policy provided coverage for the employee's theft and if the insurer was liable for the employer's legal costs in defending the claim.

The legal issues before the court included determining the extent of the employer's vicarious liability for the employee's criminal actions and whether the insurance contract covered the employee's theft. The court also had to decide if the misappropriation of money qualified as a loss of tangible property under the insurance policy, and whether the loss occurred in connection with the business. Another significant issue was whether the insurer was obligated to cover the employer's legal costs in defending the claim.

The court ruled that the employer was indeed vicariously liable for the employee's actions, affirming the lower court's decision that Sestili should be held accountable for the $33,350 withdrawn by the employee. The court further determined that the theft constituted a loss of tangible property, and that the loss occurred in connection with the business. Consequently, the insurer was found liable for the employer's legal costs in defending the claim. Both appeals by Sestili and Triton Underwriting Insurance Agency Pty Ltd were dismissed, affirming the lower court's findings and orders.

The final orders of the court were to dismiss the appeals by both Sestili and Triton Underwriting Insurance Agency Pty Ltd, thereby upholding the lower court's determination of vicarious liability and the insurer's obligation to cover the employer's legal costs.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

DEBELLE J
For these reasons the appeal by Triton must be dismissed.Conclusion For these reasons, I would dismiss both the appeal by Ms Sestili and the appeal by Triton. SULAN J: I agree with Debelle J that the appeal by Ms Sestili and the appeal by Triton Underwriting Insurance Agency Pty Ltd should be dismissed. LAYTON J: I consider that the finding by Gray J of vicarious liability for $33,350 against Ms Sestili should be upheld. I therefore consider the appeal by Ms Sestili and Triton Underwriting Agency Pty Ltd against that finding should be dismissed for the additional reasons given by Debelle J. I also agree that the appeal by Triton Underwriting Agency Pty Ltd against the order for payment of all legal costs of Ms Sestili in defending the action in court should be dismissed for reasons given by Debelle J

Ratio Decidendi

Legal Principle Established

Established by: DEBELLE J

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