Stewart v QBE Insurance (Australia) Limited
[2008] NSWDDT 6
•1 February 2008
Dust Diseases Tribunal
of New South Wales
CITATION: Stewart v QBE Insurance (Australia) Limited & Anor [2008] NSWDDT 6 PARTIES: Irene Stewart (as legal personal representative of the Estate of the Late Angus Clugston Stewart)
QBE Insurance (Australia) Limited
Wallaby Grip LimitedMATTER NUMBER(S): 7279 of 2007 JUDGMENT OF: Kearns J CATCHWORDS: Dust Diseases Tribunal :- Ruling;
employers' indemnity insurance;
statutory minimum common law cover $40,000 at the relevant time;
admission as to existence of policy;
no admission as to the extent of common law cover;
no evidence of extent of common law cover;
whether plaintiff or insurer has onus to establish extent of common law coverLEGISLATION CITED: Law Reform (Miscellaneous Provisions) Act 1946 CASES CITED: Di Cecco v Mercantile Mutual Insurance (Workers' Compensation) Limited (2002) 23 NSWCCR 143
Orica Australia Pty Ltd v CGU Insurance Ltd [2002] NSWDDT 8
Royal & Sun Alliance Insurance Australia Limited v Betta Industries Pty Limited (2002) 24 NSWCCR 164DATES OF HEARING: 01.02.2008 EX TEMPORE JUDGMENT DATE: 1 February 2008 LEGAL REPRESENTATIVES: Mr J Sharpe, instructed by Turner Freeman, appeared for the plaintiff
Mr G Little SC, with Mr G J Parker, instructed by Moray & Agnew appeared for the first defendant
Mr D J Russell SC instructed by Middletons appeared for the second defendant
JUDGMENT:
RULING
KEARNS, J
1. In the course of the plaintiff's case there arose an issue as to whether the policy of the first defendant, or the policy it has assumed, which covered the liability of the plaintiff's employer, was limited. It is clear that there was in place a policy of insurance. The first defendant has admitted that Eagle Star Insurance Limited was the employer's indemnity insurer of the plaintiff's employer. It has also admitted that it is responsible to meet the liabilities of Eagle Star Insurance Limited in respect of any liability that that company would have to indemnify the plaintiff's employer. That, in effect, is the limit of the admissions.
2. It does not admit that its liability under the policy was to exceed the then statutory minimum level of cover prescribed pursuant to the Workers' Compensation Act. At the relevant time the statutory minimum was $40,000. The first defendant admits its liability to indemnify to the extent of $40,000 but no further.
3. I was reluctant to embark upon the determination of a preliminary issue in the course of a case, but the parties agreed, and wished me to do so. The argument is put that there is no evidence as to what the limit of the policy was and therefore, it being the defendant's onus, the plaintiff argues it is unlimited. Being the plaintiff's onus the first defendant argues it is limited and limited to $40,000. It seems to me therefore that it really does come down to the question of onus.
4. Mr Little of senior counsel, who appears with Mr Parker for the first defendant, says that there are two matters of evidence from which it can be determined, if not it can be inferred, that the limit of the policy was $40,000. The two matters of evidence were firstly that there was a policy. On this issue that is a neutral piece of evidence. The second matter of evidence is that the statute prescribed the terms of the policy and the statute provided for a minimum common law cover of $40,000. I think there are two things to be said about that. The first is that is not really a piece of evidence. It is a legislative prescription. The second thing to be said about it is, not much can be drawn from it, if anything at all. Not much can be drawn from it because it is well known that when the statutory minimum requirement of the policy was $40,000 and at other times policies were often underwritten for amounts in excess of that or for unlimited amounts. It seems to me therefore that it truly does come down to the question of onus.
5. Is the onus on the plaintiff to prove that the policy of insurance in this case was unlimited or is the onus on the first defendant to prove that there was a limit and what that limit was? I have been referred to some authorities. Mr Sharpe has taken me to a decision of Curtis J in Di Cecco v Mercantile Mutual Insurance (Workers' Compensation) Limited (2002) 23 NSWCCR 143. That was a case, like this, where there was no evidence. His Honour noted at para 13 that no policy had been produced and that no further evidence had been led. His Honour stated in very clear terms that the insurer bore the onus of establishing that the relevant policy was limited in its cover.
6. Mr Sharpe has also referred me to a decision of Orica Australia Pty Ltd v CGU Insurance Ltd [2002] NSWDDT 8, where his Honour expressed some doubt about what he had said in Di Cecco, but that doubt was expressed in relation to an issue other than this particular issue of onus.
7. On the question of onus, Mr Little SC took me to Royal & Sun Alliance Insurance Australia Limited v Betta Industries Pty Limited (2002) 24 NSWCCR 164. In that case apparently the trial judge had drawn an inference that because the insured was conducting an importing business that it was conducting a manufacturing business and from that apparently held that the scope of the policy covered the wider business. It was held that he had misdirected himself as to the legal principle to be applied in deciding whether the policy covered the relevant risk. That question could be determined only by construing the policy with the contract documents.
8. Mr Little SC took me to para 40 of the judgment, where he drew on some remarks of Santo J, to argue that the onus on this issue lies on the plaintiff. His Honour pointed out that it was trite law that the question of what risk was covered "and on what terms" can only be answered by construing the policy with the contract documents. At the end of that paragraph he stated that the fact that the policy was not able to be produced did not permit the trial judge's inference, which was that the conduct of the business of importing meant that the insured was conducting a manufacturing business.
9. Mr Russell of senior counsel, who appears for the second defendant in this matter. also had some submissions. He drew my attention to the fact that the first defendant is in these proceedings pursuant to leave granted under s 6(4) of the Law Reform (Miscellaneous Provisions) Act (1946). Section 6(7) of that Act provides that no insurer is liable under that provision for any greater sum than that fixed by the contract of insurance between the insurer and the insured. He argued that there was no evidence in the case at all of any amount fixed. There being no evidence of any amount fixed therefore on the evidence there is no limit and because there is no evidence inferences cannot be drawn.
10. The precise issue of onus in terms of the limit of the policy that was before Curtis J was not before the Court of Appeal in the Royal case. As a matter of judicial comity I think I should adopt what Curtis J stated in Di Cecco, and in any event, I think there is much to be said for it. His Honour there did not address whether he was dealing with a legal onus or an evidentiary onus, but probably he was referring to a legal onus. In any event, I think it makes sense that an evidentiary onus on an issue like this ought to lay with the party that asserts. That would certainly give sense and context to the last part of the passage from the judgment of Hodgson JA that his Honour referred to, where Hodgson JA said, "All evidence is to be weighed according to the proof which it was in the power of one side to have produced and in the power of the other to have contradicted."
11. An insurer, such as the first defendant in this case, that is relying on a statutory limit is in effect asserting that is the limit for which it is liable. One would think that it ought to be within the power of such an insurer to produce evidence about that. One can understand the difficulties that these matters occurred a long time ago and that primary documents and copies thereof may in whole or in part have disappeared. But evidence to that effect, capable of being called by an insurer asserting a limit, would go in some way to assisting it in discharging its onus whether it be legal or evidentiary.
12. Mr Sharpe has submitted also that it was within the power of the insurer to have called evidence from a number of people in the insurance industry as to practices in the circumstances. Again that is a possible line of evidence which it was within the power of the first defendant to have called to have assisted as to whether at the time and in the type of industry with the particular insurer policies tended to be underwritten for the limit or more than the limit or unlimited.
13. I do not have any evidence of any of these matters and accordingly in the circumstances I rule that the policy for which the first defendant is liable to indemnify the plaintiff's employer is unlimited.
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