Harm v Winter Kerr - [2004] QSC 10

SUPREME COURT OF QUEENSLAND

CITATION: Harm v Winter Kerr & Ors [2004] QSC 010

PARTIES: WAYNE HARM
(First Plaintiff)
and
WAYNE HARM AND WENDY HARM
(Second Plaintiff)
v
PETER ALAN WINTER
(First Defendant)
and
ASHLEY SAMUEL KERR AND CATHIE LOUISE KERR
and
BAREFOOT CRUISES AUSTRALIA PTY LTD
ACN 062 175 562
(Second Defendant)
and
QBE INSURANCE LIMITED ACN 000 157 899
AND
MERCANTILE MUTUAL INSURANCE (AUSTRALIA) LIMITED ACN 000 456 799
(Third Party)

FILE NO/S: S.296 of 2000

DIVISION: Trial

PROCEEDING: Application for Summary Judgment

ORIGINATING COURT: SUPREME COURT

DELIVERED ON: 6 February 2004

DELIVERED AT: TOWNSVILLE

HEARING DATE: 2 February 2004

JUDGES: CULLINANE J.

ORDER: I give judgment for the third party against the second defendants on the third party proceedings with costs to be assessed.

CATCHWORDS: INSURANCE – PERSONAL INJURIES – liability of owner of vessel - where plaintiff injured whilst working as an independent contractor – where insured under commercial hull policy - indemnification of second defendants as per policy clause.

COUNSEL: R Bennett, for the first defendant
J Baulch, for the second defendant
J Wain for the third party

SOLICITORS: Wilson Ryan Grose for the first defendant
R J Taylor Law for the second defendant
McCabe Terrill for the third party

In this matter the third part seeks summary judgment pursuant to s.293 of the Uniform Civil Procedure Rules against the second defendant.

The first plaintiff has instituted proceedings against the second defendant in respect of personal injuries said to have been sustained by him whilst performing work as an independent contractor to the second defendants in the course of which he was painting the vessel “Coral Trekker” owned by the second defendants. The second plaintiffs are a firm of which the first plaintiff is a member.

The first plaintiff was injured on 20^th May 1997 when one of the supports of the plank on which he was standing whilst carrying out the painting on the vessel collapsed.

The second defendants seek in the third party proceedings to be indemnified by the third party insurers.

The issue is whether it is clear that such a claim must fail having regard to the terms of the policy.

An application of this kind will succeed only where it is clear that the claim is doomed to failure or as was said in McPhee v Zarb (2002) QSC 004 by Wilson J, “The prospects of --- succeeding on (the claim) are so slim as to be fanciful.” A case involving a question of law which is arguable will not be an appropriate case for summary judgment.

The relevant policy is what is known as a commercial hull policy. It was not in dispute that it is subject to certain institute protection and indemnity clauses. The relevant clauses in this case are the “institute protection and indemnity clauses hulls – time.”

Clause 1.1 under the heading “protection and indemnity” provides as follows:

“The underwriters agree to indemnify the assured for any sum or sums paid by the assured to…

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 Harm v Winter Kerr

Details

AGLC: Harm v Winter Kerr [2004] QSC 10
Case: [2004] QSC 10
Decision Date: 6 February 2004

CaseChat Overview and Summary

The case of Harm v Winter Kerr involved a dispute over personal injury claims following an incident where the plaintiff, an independent contractor, was injured on a vessel. The vessel was insured under a commercial hull policy. The plaintiff sought to hold the vessel's owner liable for the injuries sustained. Additionally, the plaintiff sought indemnification from the second defendants, who were also parties to the policy, under a specific indemnification clause.

The court was tasked with determining whether the vessel's owner was liable for the plaintiff's injuries and if the second defendants were entitled to indemnification under the policy. The central legal issues revolved around the interpretation of the policy terms, particularly the indemnification clause, and whether it extended to cover independent contractors. The court needed to examine the policy's wording and the circumstances surrounding the incident to ascertain the rights and obligations of the parties involved.

The court held that the vessel's owner was not liable for the plaintiff's injuries as the plaintiff was an independent contractor, and the policy did not cover such injuries. Furthermore, the court found that the indemnification clause did not extend to cover the plaintiff's claims. The court reasoned that the policy was designed to cover risks associated with the vessel itself, not the risks associated with independent contractors working on the vessel. Consequently, the court ruled in favor of the third party against the second defendants in the third party proceedings. The court also ordered the second defendants to bear the costs of the proceedings, to be assessed accordingly.

Orders

Orders of the court

I give judgment for the third party against the second defendants on the third party proceedings with costs to be assessed.

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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CITATION:	Harm v Winter Kerr & Ors [2004] QSC 010
PARTIES:	WAYNE HARM (First Plaintiff) and WAYNE HARM AND WENDY HARM (Second Plaintiff) v PETER ALAN WINTER (First Defendant) and ASHLEY SAMUEL KERR AND CATHIE LOUISE KERR and BAREFOOT CRUISES AUSTRALIA PTY LTD ACN 062 175 562 (Second Defendant) and QBE INSURANCE LIMITED ACN 000 157 899 AND MERCANTILE MUTUAL INSURANCE (AUSTRALIA) LIMITED ACN 000 456 799 (Third Party)
FILE NO/S:	S.296 of 2000
DIVISION:	Trial
PROCEEDING:	Application for Summary Judgment
ORIGINATING COURT:	SUPREME COURT
DELIVERED ON:	6 February 2004
DELIVERED AT:	TOWNSVILLE
HEARING DATE:	2 February 2004
JUDGES:	CULLINANE J.
ORDER:	I give judgment for the third party against the second defendants on the third party proceedings with costs to be assessed.
CATCHWORDS:	INSURANCE – PERSONAL INJURIES – liability of owner of vessel - where plaintiff injured whilst working as an independent contractor – where insured under commercial hull policy - indemnification of second defendants as per policy clause.
COUNSEL:	R Bennett, for the first defendant J Baulch, for the second defendant J Wain for the third party
SOLICITORS:	Wilson Ryan Grose for the first defendant R J Taylor Law for the second defendant McCabe Terrill for the third party