Appeal Outcome: Appeal allowed, 2 February 2010 [2010] HCA 9
New South Wales
Court of Appeal
CITATION: QBE Insurance (Australia) Ltd v Stewart [2009] NSWCA 66 HEARING DATE(S): 28 November 2008
JUDGMENT DATE:
3 April 2009JUDGMENT OF: Ipp JA at 1; Gyles AJA at 9; Brereton J at 52 DECISION: (1) The appeal asto liability is dismissed.
(2) The verdict and judgment below against QBE should be set aside and the matter remitted to the Dust DiseasesTribunal for orders to be made in accordance with the judgment of the majority.
(3) As each party has had both success and failure on discrete issues there should be no order as to costs of the appeal.CATCHWORDS: TORTS - negligence - where employee exposed to asbestos dust - whether supplier of asbestos goods negligent in failing to provide warnings and precautions - where breach of statutory duty not dealt with - INSURANCE - employer’s indemnity insurance - statutory workers’ compensation employer’s indemnity policy - scope of insurer’s liability under policy - where policy document not in evidence - onus of proof in relation to contents of cover LEGISLATION CITED: Dust Diseases Tribunal Act 1989
Factories and Shops Act 1912
Factories, Shops and Industries Act 1962
Law Reform (Miscellaneous Provisions) Act 1946
Workers Compensation Act 1926CATEGORY: Principal judgment CASES CITED: BI (Contracting) Pty Ltd v Strikwerda [2005] NSWCA 288
Balmain New Ferry Co Limited v Robertson [1906] HCA 83; (1906) 4 CLR 379
Blatch v Archer (1774) 1 Cowp 63; 98 ER 969
Bond Air Services Ltd v Hill [1955] 2 QB 417
Causer v Browne [1952] VLR 1
Curtis & Sons v Matthews (1918) 119 LT 78
Darlington Futures Limited v Delco Australia Pty Limited [1986] HCA 82; (1986) 161 CR 500
Di Cecco v Mercantile Mutual Insurance (Workers Compensation) Ltd [2002] NSWDDT 1; (2002) 23 NSWCCR 143
EM Baldwin & Son Pty Limited v Plane [1998] NSWCA 23; (1998) 17 NSWCCR 434
Gordon v Australian & New Zealand Theatres Ltd (1940) 40 SR (NSW) 512
Ho v Powell [2001] NSWCA 168; (2001) 51 NSWLR 572
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
Kodak (Australasia) Pty Ltd v Retail Traders Mutual Indemnity Insurance Association (1942) 42 SR (NSW) 231
Maughan & Chapman v Sun Alliance Insurance Ltd (1987) 4 ANZ Insurance Cases 60-793
Neill v NSW Fresh Food and Ice Pty Ltd [1963] HCA 4; (1963) 108 CLR 362
Orica Ltd v CGU Insurance Ltd [2003] NSWCA 331; (2003) 59 NSWLR 14
Robertson v Balmain New Ferry Co Limited [1910] AC 295
Royal & Sun Alliance Insurance Australia Ltd v Betta Industries Pty Ltd [2002] NSWCA 323; 24 NSWCCR 164
Swain v Waverley Municipal Council [2005] HCA 4; (2005) 220 CLR 517
Sydney Turf Club v Crowley [1972] HCA 25; (1972) 126 CLR 420
Vozza v Tooth & Co Ltd [1964] HCA 29; (1964) 112 CLR 316
Westminster Fire Office v Glasgow Provident Investment…
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Details
- Case
- [2009] NSWCA 66
- Decision Date
CaseChat Overview and Summary
QBE Insurance (Australia) Ltd appealed a decision of the Dust Diseases Tribunal of New South Wales, which had found QBE liable to indemnify Mr. Stewart in relation to his claim for damages for personal injury. Mr. Stewart had contracted a dust disease as a result of his employment, and he sought to recover from QBE under an employer's indemnity insurance policy. The primary dispute concerned the scope of QBE's liability under the policy and whether it extended to cover Mr. Stewart's claim.
The central legal issues before the Court of Appeal were whether QBE was liable to indemnify Mr. Stewart under the relevant insurance policy, and if so, the extent of that liability. The court also considered the implications of the fact that the policy document itself was not in evidence before the Tribunal, and the onus of proof in relation to the contents of the cover provided by the policy. While the Tribunal had found a breach of statutory duty, this aspect was not pursued on appeal.
The majority of the Court of Appeal, comprising Ipp JA and Gyles AJA, found that QBE was liable to indemnify Mr. Stewart. They reasoned that the evidence presented, including the nature of the policy and the circumstances of its issuance, was sufficient to establish that the policy provided cover for the type of claim made by Mr. Stewart. The court applied principles relating to the interpretation of insurance policies and the onus of proof where a key document is not produced, concluding that the Tribunal had correctly determined QBE's liability. Brereton J dissented on the issue of liability.
The appeal was dismissed in relation to liability, meaning the finding of QBE's liability was upheld. However, the verdict and judgment against QBE were set aside and the matter was remitted to the Dust Diseases Tribunal for further orders to be made in accordance with the majority judgment. Given that both parties had achieved some success and some failure on different aspects of the appeal, there were no orders made as to the costs of the appeal.
The central legal issues before the Court of Appeal were whether QBE was liable to indemnify Mr. Stewart under the relevant insurance policy, and if so, the extent of that liability. The court also considered the implications of the fact that the policy document itself was not in evidence before the Tribunal, and the onus of proof in relation to the contents of the cover provided by the policy. While the Tribunal had found a breach of statutory duty, this aspect was not pursued on appeal.
The majority of the Court of Appeal, comprising Ipp JA and Gyles AJA, found that QBE was liable to indemnify Mr. Stewart. They reasoned that the evidence presented, including the nature of the policy and the circumstances of its issuance, was sufficient to establish that the policy provided cover for the type of claim made by Mr. Stewart. The court applied principles relating to the interpretation of insurance policies and the onus of proof where a key document is not produced, concluding that the Tribunal had correctly determined QBE's liability. Brereton J dissented on the issue of liability.
The appeal was dismissed in relation to liability, meaning the finding of QBE's liability was upheld. However, the verdict and judgment against QBE were set aside and the matter was remitted to the Dust Diseases Tribunal for further orders to be made in accordance with the majority judgment. Given that both parties had achieved some success and some failure on different aspects of the appeal, there were no orders made as to the costs of the appeal.
Orders
Orders of the court
(1) The appeal as to liability is dismissed. (2) The verdict and judgment below against QBE should be set aside and the matter remitted to the Dust DiseasesTribunal for orders to be made in accordance with the judgment of the majority. (3) As each party has had both success and failure on discrete issues there should be no order as to costs of the appeal.
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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