QBE Insurance (Australia) Ltd v Stewart

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.