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
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
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- AGLC
- Flanagan v Bernasconi [2022] NSWSC 381
- Case
- [2022] NSWSC 381
- Decision Date
CaseChat Overview and Summary
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
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
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Ratio Decidendi
Legal Principle Established
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