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
[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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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.