Vero Insurance Ltd v Power Technologies Pty Ltd

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.