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
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
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- [2022] WASCA 61
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