Flanagan v Bernasconi

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.