Reported Decision: (2007) 14 ANZ Insurance Cases 61-745 Appeal Outcome: Special leave application refused with costs by the High Court - 7 March 2008
New South Wales
Court of Appeal
CITATION: Vero Insurance Limited v Power Technologies Pty Ltd [2007] NSWCA 226 HEARING DATE(S): 22 February 2007
JUDGMENT DATE:
29 August 2007JUDGMENT OF: Beazley JA at 1; Campbell JA at 192; Harrison J at 193 DECISION: 1. Appeal allowed in part; 2. Set aside the judgment and orders made by Curtis J; 3. Order that the matter be remitted to the Dust Diseases Tribunal of New South Wales for determination of the question whether the respondent had complied with its obligation under Condition 4 of the Policy of Insurance to “exercise reasonable care that only competent employees are employed”; 4. Order that each party pay its own costs of the appeal; 5. Costs of the hearing before Curtis J to abide the decision of the trial judge on the remitted hearing. CATCHWORDS: APPEAL – former adjudication of matters – contribution proceedings followed by indemnity proceedings – whether trial judge should have found insured had actual knowledge of dangers of asbestos in subsequent proceedings given prior findings on knowledge - INSURANCE – use of findings of fact from previous decision – whether trial judge used findings of fact without parties being given opportunity to consider and respond to material – if trial judge did use previous findings of fact, whether there was evidence in this case that supported that fact finding - INSURANCE – public liability insurance policy – Condition of policy that insured take all reasonable precautions to prevent bodily injury – onus of proof on insured to prove compliance with Condition – whether insured had actual knowledge of the risk of exposure to asbestos - INSURANCE – public liability insurance policy - Condition of policy that insured take all reasonable precautions to prevent bodily injury – onus on insured to prove they had not deliberately courted a risk – whether there was evidence that insured complied with standard industry practice – whether trial judge erred by having found that insured complied with standard industry practice, that constituted prima-facie evidence that a tortfeasor had not deliberately courted a risk - INSURANCE – public liability insurance policy – Condition of policy that insured exercise reasonable care that only competent employees are employed – whether trial judge failed to deal with whether insured satisfied its onus of proving it had only employed competent employees - INSURANCE – public liability insurance policy – policy excluded claims arising out of a breach of the duty owed in a professional capacity by the insured – whether insured owed a professional duty to worker suffering damage - INSURANCE – public liability insurance policy – policy responded in respect of bodily injury occurring during period of insurance – inhalation of asbestos fibres resulting in mesothelioma – time at which injury occurred – injury occurred at time of initial inhalation and penetration of asbestos - INSURANCE –…
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Details
- Case
- [2007] NSWCA 226
- Decision Date
CaseChat Overview and Summary
Vero Insurance Ltd appealed from a decision of Curtis J in the Supreme Court of New South Wales concerning a public liability insurance policy issued to Power Technologies Pty Ltd. The dispute arose from claims made by workers who suffered injury due to asbestos exposure during their employment with Power Technologies. Vero sought to avoid liability under the policy, arguing that Power Technologies had breached various conditions and exclusions.
The Court of Appeal was required to determine several legal issues. These included whether the trial judge erred in finding that Power Technologies had actual knowledge of the dangers of asbestos in subsequent proceedings, given prior findings on this issue. The court also considered whether the trial judge improperly used findings of fact from a previous decision without affording the parties an opportunity to respond, and if so, whether there was sufficient evidence in the present case to support those findings. Further issues involved the onus of proof on the insured to demonstrate compliance with policy conditions regarding reasonable precautions to prevent bodily injury, the employment of competent staff, and whether the insured had deliberately courted a risk. The court also had to consider whether the insured owed a professional duty to the injured workers, thereby triggering a policy exclusion, and the timing of the bodily injury for the purposes of the policy period, particularly in relation to asbestos-related diseases.
The Court of Appeal, comprising Beazley JA, Campbell JA, and Harrison J, allowed the appeal in part. The court found that the trial judge had erred in failing to adequately deal with the question of whether Power Technologies had satisfied its onus of proving it had only employed competent employees, as required by Condition 4 of the policy. While acknowledging that compliance with standard industry practice could constitute prima facie evidence of not deliberately courting a risk, the court found that the trial judge's findings on other aspects of the case, particularly regarding the use of previous findings of fact, required reconsideration. The court also determined that the bodily injury occurred at the time of initial inhalation of asbestos fibres.
Consequently, the judgment and orders of Curtis J were set aside. The matter was remitted to the Dust Diseases Tribunal of New South Wales for the determination of the specific question of whether Power Technologies had complied with its obligation under Condition 4 of the policy concerning the employment of competent staff. The costs of the appeal were ordered to be borne by each party, while the costs of the hearing before Curtis J were to abide the decision of the trial judge on the remitted hearing.
The Court of Appeal was required to determine several legal issues. These included whether the trial judge erred in finding that Power Technologies had actual knowledge of the dangers of asbestos in subsequent proceedings, given prior findings on this issue. The court also considered whether the trial judge improperly used findings of fact from a previous decision without affording the parties an opportunity to respond, and if so, whether there was sufficient evidence in the present case to support those findings. Further issues involved the onus of proof on the insured to demonstrate compliance with policy conditions regarding reasonable precautions to prevent bodily injury, the employment of competent staff, and whether the insured had deliberately courted a risk. The court also had to consider whether the insured owed a professional duty to the injured workers, thereby triggering a policy exclusion, and the timing of the bodily injury for the purposes of the policy period, particularly in relation to asbestos-related diseases.
The Court of Appeal, comprising Beazley JA, Campbell JA, and Harrison J, allowed the appeal in part. The court found that the trial judge had erred in failing to adequately deal with the question of whether Power Technologies had satisfied its onus of proving it had only employed competent employees, as required by Condition 4 of the policy. While acknowledging that compliance with standard industry practice could constitute prima facie evidence of not deliberately courting a risk, the court found that the trial judge's findings on other aspects of the case, particularly regarding the use of previous findings of fact, required reconsideration. The court also determined that the bodily injury occurred at the time of initial inhalation of asbestos fibres.
Consequently, the judgment and orders of Curtis J were set aside. The matter was remitted to the Dust Diseases Tribunal of New South Wales for the determination of the specific question of whether Power Technologies had complied with its obligation under Condition 4 of the policy concerning the employment of competent staff. The costs of the appeal were ordered to be borne by each party, while the costs of the hearing before Curtis J were to abide the decision of the trial judge on the remitted hearing.
Orders
Orders of the court
1. Appeal allowed in part; 2. Set aside the judgment and orders made by Curtis J; 3. Order that the matter be remitted to the Dust Diseases Tribunal of New South Wales for determination of the question whether the respondent had complied with its obligation under Condition 4 of the Policy of Insurance to "exercise reasonable care that only competent employees are employed"; 4. Order that each party pay its own costs of the appeal; 5. Costs of the hearing before Curtis J to abide the decision of the trial judge on the remitted hearing.
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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