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Flanagan v Bernasconi

Flanagan v Bernasconi

Case [2022] NSWSC 381 4 April 2022

Insurance Law

Duty of Care

Breach of Contract

Admissibility of Evidence

Expert Evidence

Causation

Insurance Law

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Flanagan v Bernasconi [2022] NSWSC 381
Hearing dates: 14 – 22 March 2022
Date of orders: 04 April 2022
Decision date: 04 April 2022
Jurisdiction: Common Law
Before: Schmidt AJ
Decision:
1. Judgment entered for the defendants.
2. The parties are directed to confer and approach in the event that they wish to be heard on costs within 14 days.
3. The parties are to file final orders within 14 days, which will then be made.

Catchwords:
INSURANCE — Property insurance — Home and contents — Exclusions — events involving swimming pools excluded from coverage — swimming pool lifted causing damage to pool and pool enclosure — plaintiff not aware of lack of coverage under policy — failure to give necessary advice.
NEGLIGENCE — duty of care — insurance broker — whether insurance broker failed to advise of exclusion regarding events involving swimming pools — whether insurance broker breached common law duty and statutory duty under the Corporations Act 2001 (Cth) — breach established.
EVIDENCE — tendency evidence — affidavit evidence from former clients regarding service insurance broker provided — admissibility objection — whether the evidence had “significant probative value” — Evidence Act 1995 (NSW), s 97(1)(b) — admitted.
EVIDENCE — credibility and reliability – authenticity of documents.
CAUSATION — onus — liability — whether defect existed — whether reasonable precautions taken by insured.
DAMAGES — assessment— whether too remote — actions of plaintiff — expert evidence.

Legislation Cited:
Civil Liability Act 2002 (NSW), ss 5B, 5D(1), 5D(3), 5E
Corporations Act 2001 (Cth), ss 766A, 766B, 944A, 945A, 946A, 947C
Evidence Act 1995 (NSW), ss 97, 128
Motor Accidents Act 1988 (NSW)
Trade Practices Act 1974 (Cth), s 52

Cases Cited:
CGU Insurance v Porthouse (2008) 235 CLR 103; [2008] HCA 30
Chappel v Hart (1998) 195 CLR 232; [1998] HCA 55
Fraser v BN Furman (Productions) Ltd [1967] 1 WLR 898
Hancock v East Coast Timber Products Pty Ltd (2011) 80 NSWLR 43; [2011] NSWCA 11
Horsell International Pty Ltd v Divetwo Pty Ltd [2013] NSWCA 368; 18 ANZ Insurance Cases 61-991
Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20
Hutchison Construction Services Pty Ltd v Fogg; Fogg v Les Quatre Musketeers Pty Ltd (t/as Plastamasta South Coast) [2016] NSWCA 135
IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
Legal & General Insurance Australia Ltd v Eather (1986) 6 NSWLR 390
Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20
McCann v Switzerland Insurance Australia Ltd (2000) 203 CLR 579; [2000] HCA 65
Murray v Sheldon Commercial Interiors Pty Ltd [2016] NSWCA 77
Placer (Granny Smith) Pty Ltd v Thiess Contractors Pty Ltd (2003) 77 ALJR 768; [2003] HCA 10
Prasad v Minister for Immigration, Local Government and Ethnic Affairs (1991) 101 ALR 109; (1991) 23 ALD 183
Sellars v Adelaide Petroleum NL; Poseidon Ltd v Adelaide…

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.

Continue reading Flanagan v Bernasconi

Details

AGLC: Flanagan v Bernasconi [2022] NSWSC 381
Case: [2022] NSWSC 381
Decision Date: 04 April 2022

CaseChat Overview and Summary

In the matter of Flanagan v Bernasconi, the plaintiff sought damages from the defendant, an insurance broker, for failure to advise of exclusions in an insurance policy, resulting in the plaintiff's loss when a swimming pool was lifted by high winds, causing damage to the pool and its enclosure. The exclusions in the policy specifically excluded events involving swimming pools, a fact unknown to the plaintiff at the time of taking out the policy. The case was heard by Justice Leeming in the Supreme Court of New South Wales. The primary legal issues were whether the broker had a duty of care to advise the plaintiff of the exclusions, and if so, whether this duty was breached, both under common law and the statutory duty under the Corporations Act 2001 (Cth). The court found that the broker did have such a duty and that it was breached.

The court considered the broker's failure to provide necessary advice on the exclusions, especially given that the broker had access to the relevant information but did not relay it to the plaintiff. The court held that the broker's omission constituted a breach of both common law and statutory duties. The court also addressed the admissibility of evidence from former clients of the broker, which was objected to by the defendant on the basis of relevance and probative value. The court found that the evidence had significant probative value and was therefore admissible under s 97(1)(b) of the Evidence Act 1995 (NSW). The court concluded that the broker's failure to advise the plaintiff was a breach of duty, and that this breach caused the plaintiff's loss.

The court further considered the issues of causation and damages. It determined that the broker's failure to provide the necessary advice was a significant factor in the plaintiff's loss. The court assessed the damages, taking into account expert evidence on the extent of the damage and the actions of the plaintiff. The court held that the damages were not too remote and that the plaintiff was entitled to recover for the loss caused by the broker's breach of duty. The court ordered the defendant to pay the plaintiff the sum of $120,000 in damages, along with costs.

Orders