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QBE Insurance Australia Ltd v Vasic

QBE Insurance Australia Ltd v Vasic

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Case Copied 15 July 2010 35 min read

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New South Wales

Court of Appeal

CITATION: QBE Insurance Australia Ltd v Vasic [2010] NSWCA 166

HEARING DATE(S): 24 June 2010

JUDGMENT DATE:
15 July 2010

JUDGMENT OF: Allsop P at 1; Giles JA at 41; Macfarlan JA at 42

DECISION: Orders made on 24 June 2010.
1. Leave to appeal granted
2. Order appellants to file a notice of appeal within 14 days.
3. Appeal dismissed with costs

CATCHWORDS: INSURANCE – construction of policy – indemnity insurance – insured’s activity of allowing licensed shooters on properties for the purpose of hunting only – legal liability to third parties for bodily injury and/or property damage in connection with activity – son accompanying licensed shooter on overnight hunting excursion injured by fire on insured’s property – coverage clause applied - INTERPRETATION – admissibility of extrinsic evidence in relation to instruments – proposal and policy wording of previous insurance policy – no evidence that insurers had knowledge of these documents – statement of insurance broker as to genesis of the policy in question – no evidence parties had knowledge of how policy was developed – knowledge of surrounding circumstances attributed to a reasonable person in the situation of the contracting parties is to be understood by reference to what the parties knew in the context of their mutual dealings

LEGISLATION CITED: Supreme Court Act 1970 (NSW) s 45

CATEGORY: Consequential orders

CASES CITED: Bank of Credit and Commerce International SA v Ali [2001] UKHL 8; [2002] 1 AC 251
Charrington & Co Ltd v Wooder [1914] AC 71
Codelfa Construction Pty Ltd v State Rail Authority of New South Wales [1982] HCA 24; 149 CLR 337
DTR Nominees Pty Ltd v Mona Homes Pty Ltd [1978] HCA 12; 138 CLR 423
Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8; 209 CLR 95
Franklins Pty Ltd v Metcash Trading Limited [2009] NSWCA 407; 264 ALR 15
Hvalfangerselskapet Polaris Aktieselskap Ltd v Unilever Ltd (1933) 39 Com Cas 1
Investors Compensation Scheme Limited v West Bromwich Building Society [1998] 1 WLR 896
International Air Transport Association v Ansett Australian Holdings Ltd [2008] HCA 3; 234 CLR 151
Maggbury Pty Ltd v Hafele Australia Pty Ltd [2001] HCA 70; 210 CLR 181
Pacific Carriers Ltd v BNP Paribas [2004] HCA 35; 218 CLR 451
Reardon Smith Line v Hansen-Tangen [1976] 1 WLR 989
Royal Botanic Gardens and Domain Trust v South Sydney City Council [2002] HCA 5; 76 ALJR 436
The Movie Network Channels Pty Ltd v Optus Vision Pty Ltd [2010] NSWCA 111
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; 219 CLR 165
Zhu v Treasurer of New South Wales [2004] HCA 56; 218 CLR 530

PARTIES: QBE Insurance Australia Limited (First Appellant)
Mercantile Mutual Insurance (Australia) Limited (Second Appellant)
Josslyn Vasic (First Respondent)
Charles Fairey (Second Respondent)

FILE NUMBER(S): CA 2006/266976

COUNSEL: Mr MT McCulloch SC (Appellants)
Mr L King SC, Mr R Hanlon (Respondents)

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: [2010] NSWCA 166
Decision Date: 15 July 2010

CaseChat Overview and Summary

QBE Insurance Australia Ltd appealed to the Court of Appeal of New South Wales against a decision concerning the interpretation of an indemnity insurance policy. The dispute arose from an incident where the insured's son, who was accompanying a licensed shooter on an overnight hunting excursion on the insured's property, sustained injuries from a fire. The core of the disagreement lay in whether the insurance policy provided coverage for this specific event, given the insured's activity of allowing licensed shooters onto their properties for hunting purposes.

The Court of Appeal was required to determine the proper construction of the insurance policy, specifically whether the coverage clause applied to the circumstances of the son's injury. A key legal issue involved the admissibility of extrinsic evidence in interpreting the policy, including the proposal and wording of a previous insurance policy, and a statement from an insurance broker regarding the policy's genesis. The court also considered the scope of knowledge of surrounding circumstances that could be attributed to the contracting parties for the purpose of interpretation.

The Court reasoned that the knowledge of surrounding circumstances to be attributed to a reasonable person in the position of the contracting parties should be understood by reference to what the parties actually knew in the context of their mutual dealings. The court found no evidence that the insurers had knowledge of the previous policy documents or that the parties had knowledge of how the current policy was developed. Consequently, the extrinsic evidence was not admitted to inform the interpretation of the policy. The appeal was dismissed, with the court ordering that the appellants file a notice of appeal within 14 days and that the appeal be dismissed with costs.

Orders

Orders of the court

Orders made on 24 June 2010.

1. Leave to appeal granted

2. Order appellants to file a notice of appeal within 14 days.

3. Appeal dismissed with costs

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	QBE Insurance Australia Ltd v Vasic [2010] NSWCA 166
HEARING DATE(S):	24 June 2010
JUDGMENT DATE:	15 July 2010
JUDGMENT OF:	Allsop P at 1; Giles JA at 41; Macfarlan JA at 42
DECISION:	Orders made on 24 June 2010. 1. Leave to appeal granted 2. Order appellants to file a notice of appeal within 14 days. 3. Appeal dismissed with costs
CATCHWORDS:	INSURANCE – construction of policy – indemnity insurance – insured’s activity of allowing licensed shooters on properties for the purpose of hunting only – legal liability to third parties for bodily injury and/or property damage in connection with activity – son accompanying licensed shooter on overnight hunting excursion injured by fire on insured’s property – coverage clause applied - INTERPRETATION – admissibility of extrinsic evidence in relation to instruments – proposal and policy wording of previous insurance policy – no evidence that insurers had knowledge of these documents – statement of insurance broker as to genesis of the policy in question – no evidence parties had knowledge of how policy was developed – knowledge of surrounding circumstances attributed to a reasonable person in the situation of the contracting parties is to be understood by reference to what the parties knew in the context of their mutual dealings
LEGISLATION CITED:	Supreme Court Act 1970 (NSW) s 45
CATEGORY:	Consequential orders
CASES CITED:	Bank of Credit and Commerce International SA v Ali [2001] UKHL 8; [2002] 1 AC 251 Charrington & Co Ltd v Wooder [1914] AC 71 Codelfa Construction Pty Ltd v State Rail Authority of New South Wales [1982] HCA 24; 149 CLR 337 DTR Nominees Pty Ltd v Mona Homes Pty Ltd [1978] HCA 12; 138 CLR 423 Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8; 209 CLR 95 Franklins Pty Ltd v Metcash Trading Limited [2009] NSWCA 407; 264 ALR 15 Hvalfangerselskapet Polaris Aktieselskap Ltd v Unilever Ltd (1933) 39 Com Cas 1 Investors Compensation Scheme Limited v West Bromwich Building Society [1998] 1 WLR 896 International Air Transport Association v Ansett Australian Holdings Ltd [2008] HCA 3; 234 CLR 151 Maggbury Pty Ltd v Hafele Australia Pty Ltd [2001] HCA 70; 210 CLR 181 Pacific Carriers Ltd v BNP Paribas [2004] HCA 35; 218 CLR 451 Reardon Smith Line v Hansen-Tangen [1976] 1 WLR 989 Royal Botanic Gardens and Domain Trust v South Sydney City Council [2002] HCA 5; 76 ALJR 436 The Movie Network Channels Pty Ltd v Optus Vision Pty Ltd [2010] NSWCA 111 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; 219 CLR 165 Zhu v Treasurer of New South Wales [2004] HCA 56; 218 CLR 530
PARTIES:	QBE Insurance Australia Limited (First Appellant) Mercantile Mutual Insurance (Australia) Limited (Second Appellant) Josslyn Vasic (First Respondent) Charles Fairey (Second Respondent)
FILE NUMBER(S):	CA 2006/266976
COUNSEL:	Mr MT McCulloch SC (Appellants) Mr L King SC, Mr R Hanlon (Respondents)