QBE Insurance (Australia) Limited v BB - [2022] WASCA 61

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   QBE INSURANCE (AUSTRALIA) LIMITED -v- BB [2022] WASCA 61
CORAM:   BEECH JA
ALLANSON J
SMITH J

HEARD:   5 MAY 2022
DELIVERED          :   8 JUNE 2022
FILE NO/S:   CACV 47 of 2021
BETWEEN:   QBE INSURANCE (AUSTRALIA) LIMITED
Appellant
AND
BB
First Respondent
HELENA COLLEGE COUNCIL INC T/AS HELENA COLLEGE
Second Respondent
INSURANCE AUSTRALIA GROUP LIMITED
Third Respondent
BERKSHIRE HATHAWAY SPECIALTY INSURANCE COMPANY
Fourth Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   SHARP DCJ
File Number            :   CIV 1904 of 2020

Catchwords:

Appeals - Where members of College Council gave evidence at trial - Inferences by trial judge as to state of mind of College Council - Whether appeal against finding as to College Council's state of mind engages principles applicable to appellate challenges to findings of fact that are likely to have been affected by trial judge's assessment of witnesses' credibility and reliability

Insurance - Condition of policy requiring insured to take reasonable precautions to prevent bodily injury - Where having been sued by former student, College agreed to pay damages for historic child sexual abuse by teacher - Whether insurer liable to indemnify College - Whether judge erred by observing that it was inconceivable that College Council would knowingly expose students to risk of sexual abuse - Whether judge erred by inferring council members' states of mind from hypothetical evidence given by some members about how they would have acted had they thought teacher was or might be a sexual predator - Whether judge erred by finding that College Council did not know about risk of sexual abuse and did not know that their actions were inadequate

Legislation:

Nil

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	S Donaldson SC & C Coventry
First Respondent	:	No appearance
Second Respondent	:	G J Pynt
Third Respondent	:	G R Hancy
Fourth Respondent	:	No appearance

Solicitors:

Appellant	:	Thompson Cooper Lawyers Pty Ltd
First Respondent	:	Rightside Legal
Second Respondent	:	Jackson McDonald
Third Respondent	:	HWL Ebsworth Lawyers (Perth)
Fourth Respondent	:	Minter Ellison

Case(s) referred to in decision(s):

Barrie Toepfer Earthmoving and Land Management Pty Ltd v CGU Insurance Ltd [2016] NSWCA 67; (2016) 75 MVR 108
BB v Helena College Council Inc t/as Helena College [2021] WADC 42
Binningup Nominees Pty Ltd v Mirvac (WA) Pty Ltd [2021] WASCA 130
Child and Adolescent Health Service v Mabior [2019] WASCA 151; (2019) 55 WAR 208
Devries v Australian National Railways Commission (1993) 177 CLR 472
Fazio v Fazio [2012] WASCA 72
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Fraser v BN Firman (Productions) Ltd; Miller Smith & Partners [1967] 1 WLR 898
G v H (1994) 181 CLR 387
Joyce v Anderson [2020] WASCA 48; (2020) 91 MVR 334
Kodak (Australasia) Pty Ltd v Retail Traders Mutual Traders Indemnity Insurance Association (1942) 42 SR (NSW) 231
Lee v Lee…

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.

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Details

Case: [2022] WASCA 61
Decision Date

CaseChat Overview and Summary

In QBE Insurance (Australia) Limited v BB, the Court of Appeal of the Supreme Court of Western Australia dismissed an appeal by QBE Insurance (Australia) Limited against a decision of the District Court of Western Australia. The primary judge had held QBE liable to indemnify the Helena College Council Inc t/as Helena College (the College Council) for its liability to a former student, BB, who had been sexually abused by a teacher while at the College. The appeal concerned the primary judge's finding that the College Council had taken reasonable precautions to prevent bodily injury to students. QBE argued that the College Council had failed to take reasonable precautions because it had been aware that there was a material risk of injury to students and that the steps it took were inadequate to address that risk. The appeal court found that the appeal grounds failed because the primary judge's findings as to the College Council's state of mind were not shown to be wrong. The appeal court found that the evidence supported an inference that the College Council did not consider that a real risk existed that the teacher might sexually interfere with a student and that it had taken what it considered to be appropriate steps in light of what it knew or believed as to the teacher's conduct.

Orders