Flanagan v Bernasconi

The appeal concerned a claim for professional negligence against an insurance broker. The appellant alleged that the broker breached their duty of care by advising on and obtaining an insurance policy that contained exclusion clauses, unlike the appellant's previous policy. Consequently, a claim for accidental damage to a pool and its building was denied due to these exclusions. The central dispute revolved around whether the appellant would have secured alternative insurance cover that would have responded to the claim, had the broker not breached their duty.

The court was required to determine several key legal issues. These included whether the insurance policy the appellant would have obtained, but for the broker's breach, would have covered the damage to the pool and pool building. The court also considered whether the primary judge erred in relation to the onus of proof, specifically concerning the question of whether an alternative insurer would have provided cover without the exclusion clauses. Furthermore, the court examined whether the primary judge erred in finding that the appellant would have taken out insurance cover that did not contain the relevant exclusion clauses.

The court's reasoning focused on the appellant's burden to prove, on the balance of probabilities, that they suffered loss as a result of the broker's negligence. This involved demonstrating that an alternative policy, free from the exclusionary clauses, would have been available and that such a policy would have covered the specific damage sustained. The court found that the appellant had not discharged this onus. The primary judge's findings were upheld, concluding that it had not been proven that an alternative insurer would have covered the appellant's claim.

The appeal and cross-appeal were both dismissed. The appellant was ordered to pay the costs of the appeal and cross-appeal.