Tzaidas v Child

Case [2004] NSWCA 252


Reported Decision:

61 NSWLR 18
(2004) 13 ANZ Insurance Cases 61-617

Court of Appeal


CITATION: Tzaidas v Child & 3 Ors [2004] NSWCA 252
HEARING DATE(S): 30 April 2004
JUDGMENT DATE:
27 July 2004
JUDGMENT OF: Giles JA at 1; Santow JA at 62; Campbell AJA at 145
DECISION: Leave to appeal granted. Appeal allowed.
CATCHWORDS: NEGLIGENCE - negligence claim in respect of injuries sustained during and after birth at hospital - whether arguable case that the hospital, though a community hospital, was equipped to deal with anticipatable consequences of mother being carrier of haemophilia B - PROCEDURE - Whether denial of leave required under proviso s6(4) of the Law Reform (Miscellaneous Provisions) Act (NSW) ("the Act") to enforce a charge against insurance monies under policy covering negligence should stand - contractual terms of insurance did permit insurer to disclaim liability - effect of s54 of Insurance Contracts Act 1984 (C'th) on contractual right to disclaim - no proceedings extant that s54 did not preclude disclaimer - can FAI General Insurance Co Ltd v Jarvis be distinguished or followed - Consideration of whether Jarvis correctly decided - whether appellate court should be reconstituted as five judge court - Court's discretion to grant leave - leave granted under s6(4) of the Act
LEGISLATION CITED: De facto Relationships Act 1984 s20
Insurance Contracts Act 1984 (C'th). s28; s54
Law Reform (Miscellaneous Provisions) Act 1946 s6
Supreme Court Act 1970 s101(2)(e)
CASES CITED: Andjelkovic v AFG Insurance Ltd (1980) 47 FLR 34
Antico v Fielding Australia Pty Ltd (1997) 146 ALR 385
Bailey v New South Wales Medical Defence Union Ltd (1995) 184 CLR 399
Bennett & Wood Ltd v Orange City Council; Board of Fire Commissioners (Third Party) (1967) 67 SR(NSW) 476
Bridges v Bridges (1944) 45 SR 164
Campbell v Mutual Life and Citizens Fire and General Insurance Co (NZ) Ltd (1971) NZLR 240
Dixon v Royal Insurance Australia Ltd (1998) 90 FLR 390
Dwyer v Kaljo (1992) 27 NSWLR 728
East End Real Estate Pty Ltd v C E Heath General Insurance Ltd (1991) 25 NSWLR 400
Evans v Marmont (1997) 42 NSWLR 70
FAI General Insurance Co Ltd v Australian Hospital Care Pty Ltd (2001) 204 CLR 641
FAI General Insurance Co Ltd v Jarvis (1999) 46 NSWLR 1
Fishwives Pty Ltd v FAI General Insurance Co Ltd (2002) ANZ Ins Cas 61-515
Greentree v FAI General Insurance Co Ltd (1998) 44 NSWLR 706
Hellier v AMP General Insurance Ltd [2002] NSWSC 866
Kinzett v McCourt (1999) 46 NSWLR 32
Lissenden v Yorkville Nominees Pty Ltd (1984) 43 NSWLR 138
McMillan v Mannix (1993) 31 NSWLR 538
Nguyen v Nguyen (1990) 169 CLR 245
Oswald v Bailey (1987) 11 NSWLR 715
Permanent Trustee Australia v FAI General Insurance Co Ltd (1998) 44 NSWLR 186
Queensland v The Commonwealth (1977) 139 CLR 585
R v Johns (1978) 2 NSWLR 259
R v Jurisic (1998) 45 NSWLR 209
R v Henry (1999) 46 NSWLR 346
R v Mai (1992) 26…

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AGLC
Tzaidas v Child [2004] NSWCA 252
Case
[2004] NSWCA 252
Decision Date

CaseChat Overview and Summary

The parties to this proceeding were Tzaidas, the plaintiff, and the Child, the defendant, in a negligence claim arising from injuries sustained during and after birth at a hospital. The dispute concerned whether the hospital, despite being a community hospital, was adequately equipped to manage the foreseeable complications associated with the mother being a carrier of haemophilia B. The matter came before the New South Wales Court of Appeal.

The central legal issues before the Court of Appeal involved the application of the *Law Reform (Miscellaneous Provisions) Act 1946* (NSW) ("the Act"). Specifically, the Court had to determine whether leave to enforce a charge against insurance monies under a policy covering negligence should be denied under the proviso to s6(4) of the Act. This required consideration of whether the insurer's contractual right to disclaim liability was affected by s54 of the *Insurance Contracts Act 1984* (Cth), and whether the absence of extant proceedings precluded the operation of s54. The Court also considered whether the decision in *FAI General Insurance Co Ltd v Jarvis* was correctly decided and applicable, and whether the appellate court should be reconstituted as a five-judge court.

The Court reasoned that the discretion to grant leave under s6(4) of the Act was engaged. It found that the circumstances warranted the granting of leave, implying that the denial of leave previously sought was not to stand. The Court's analysis of the interplay between the *Law Reform (Miscellaneous Provisions) Act* and the *Insurance Contracts Act*, particularly in relation to the insurer's disclaimer of liability, led to the conclusion that the appeal should be allowed.

Consequently, the Court of Appeal granted leave to appeal and allowed the appeal.

Orders

Orders of the court

Leave to appeal granted. Appeal allowed.

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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