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Keeble v Murray

Keeble v Murray

Case [2014] NSWSC 151 3 March 2014

Jurisdiction

Exclusion Clause

Interpretation of Contracts

Civil Litigation & Procedure

Insurance Law

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Supreme Court

New South Wales

Medium Neutral Citation: Keeble v Murray [2014] NSWSC 151
Hearing dates: 14 November 2013
Decision date: 03 March 2014
Jurisdiction: Common Law
Before: Harrison AsJ
Decision:
The Court orders that:
(1) Leave is granted to the plaintiff to join ACE Insurance Ltd as the sixth defendant to these proceedings.
(2) Leave is granted to the plaintiff to file an amended statement of claim within 14 days.
(3) Costs are reserved.

Catchwords: PRACTICE AND PROCEDURE - application to join insurance company as a defendant to the proceedings in a personal injuries claim - multiple defendants - whether there is an arguable case against the insured and an arguable case that the insurance policy responds; CONTRACTS - insurance company seeks to rely upon an exclusion clause relating to workers compensation - whether there is an arguable case that the plaintiff was not employed by the defendants - whether employee is suing employer at common law - whether exclusion clause will be applicable; INTERPRETATION - interpretation of exclusion clause - exclusion clause capable of more than one interpretation - exclusion clause to be construed contra proferentem
Legislation Cited: Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 6
Workers' Compensation Act 1926 (NSW), s 6
Workers Compensation Act 1987 (NSW), s 150, Sch 1, cl 1
Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 4, 250, 262, Sch 1, cl 9
Cases Cited: AFG Insurances Ltd v Andjelkovic (1981) 54 FLR 398
Day v The Ocean Beach Hotel Shellharbour Pty Ltd [2013] NSWCA 250
Ebb v Fast Fix Steel Fixing Pty Ltd [2007] NSWCA 236
Eastern Creek Holdings Pty Limited v Axis Specialty Europe Limited [2010] NSWSC 840
Energize Fitness Pty Ltd v Vero Insurance Limited [2012] NSWCA 213
Laugher v Pointer (1826) 5 B & C 547; 108 ER 204
OP Industries Pty Ltd v MMI Workers Compensation (NSW) Ltd (1998) 17 NSWCCR 193
Racing NSW v NSW Self Insurance Corporation (a continuance of the NSW Insurance Ministerial Corporation), trading as Treasury Managed Fund No. 1 [2008] NSWSC 6
Sydney Turf Club v Crowley (1972) 126 CLR 420
Transfield Services (Australia) v Hall; Hall v QBE Insurance (Australia) [2008] NSWCA 294
Category: Interlocutory applications
Parties: Kylie Leanne Keeble (Plaintiff)
Paul Murray (First Defendant)
Murray Family Investments Pty Ltd t/as EB & DE Murray Family Trust (Second Defendant)
Chris Behan (Third Defendant)
Racing NSW (Fourth Defendant)
ACE Insurance Ltd (Sixth Defendant)
Representation: Counsel:
B Phillips (Plaintiff)
M Howling (Solicitor - First & Second Defendants)
M Zakaria (Solicitor - Fourth Defendant)
D Weinberger (Sixth Defendant)
Solicitors:
Slater & Gordon (Plaintiff)
Gibson Howlin Lawyers (First and Second Defendants)
Moray & Agnew (Fourth Defendant)
DLA Piper Australia (Sixth Defendant)

File Number(s): 2009/327349

Judgment

HER HONOUR: The issue to be determined is whether the insurer should be joined as a defendant.

The plaintiff's evidence in relation to the accident is set out in her evidentiary statement dated 20 June 2012. For the purpose of this application, I have taken her evidence…

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 Keeble v Murray

Details

AGLC: Keeble v Murray [2014] NSWSC 151
Case: [2014] NSWSC 151
Decision Date: 03 March 2014

CaseChat Overview and Summary

Keeble v Murray was an application in the Supreme Court of Queensland for an order allowing the defendant, Murray, to join the insurance company as a defendant to the proceedings. The plaintiff, Keeble, had commenced proceedings against Murray for personal injuries allegedly arising from an incident. Murray sought to join the insurance company on the basis that the insurance policy covered the risk of the incident and the insurance company would be liable if Murray was found to be liable to the plaintiff. The insurance company opposed the application on several grounds, including that there was no arguable case against Murray and that an exclusion clause in the insurance policy excluded coverage for claims arising from employment-related injuries. The court was required to determine whether there was an arguable case against Murray and whether the insurance policy responded to the claim, including whether the exclusion clause applied.

The court found that there was an arguable case against Murray and that the insurance policy responded to the claim. The court held that the exclusion clause in the insurance policy was ambiguous and could be interpreted in more than one way. The court construed the exclusion clause contra proferentem and found that it did not apply to the plaintiff's claim. The court held that the plaintiff was not an employee of Murray and therefore the exclusion clause did not exclude coverage for the claim. The court also found that the plaintiff was not suing Murray at common law as an employer but rather as a party who had caused the plaintiff's injuries.

The court granted Murray's application to join the insurance company as a defendant to the proceedings. The court held that there was an arguable case against Murray and that the insurance policy responded to the claim. The court held that the exclusion clause in the insurance policy did not apply to the plaintiff's claim because the plaintiff was not an employee of Murray and was not suing Murray at common law as an employer. The court's decision allowed the insurance company to defend the claim and potentially contribute to any damages awarded to the plaintiff.

Orders