JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: WFI INSURANCE LTD -v- VERINI [2016] WASCA 143
CORAM: MARTIN CJ
BUSS P
MURPHY JA
HEARD: 4 MAY 2016
DELIVERED : 12 AUGUST 2016
FILE NO/S: CACV 117 of 2015
BETWEEN: WFI INSURANCE LTD
Appellant
AND
CLAUDIO VERINI
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :ALLANSON J
Citation :AUSTIN -v- VERINI [2015] WASC 258
File No :CIV 2721 of 2011
Catchwords:
Insurance contract - Claim by owner/builder for indemnity against liability for personal injury - Exclusion clause - Cover excluded liability for personal injury directly or indirectly caused by or arising out of breach of duty as 'owner or occupier' - Whether breach of duty as 'owner' - Personal injury resulting from collapse of defective balcony in residential home - Injury occurring many years after the balcony constructed - Original owner/builder responsible for carrying out building works - Owner/builder subsequently sold property and title to property transferred on two further occasions prior to balcony collapse - Whether exclusion clause applied to claim for indemnity by original owner/builder - 'Ownership' not a relevant ingredient of the liability in question - Any duty that existed arose from original owner's conduct in construction of balcony
Legislation:
Nil
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Mr G J Pynt
Respondent: Mr G R Hancy
Solicitors:
Appellant: Greenland Legal Pty Ltd
Respondent: Camm & Associates
Case(s) referred to in judgment(s):
Anns v Merton London Borough Council [1978] AC 728
Austin v Verini [2015] WASC 258
Bottomley v Bannister [1932] 1 KB 458
Brookfield Multiplex Ltd v Owners Corporation Strata Plan 61288 [2014] HCA 36; (2014) 254 CLR 185
Bryan v Maloney [1995] HCA 17; (1995) 182 CLR 609
Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258; (2009) 75 NSWLR 649
Darlington Futures Ltd v Delco Australia Pty Ltd [1986] HCA 82; (1986) 161 CLR 500
Donoghue v Stevenson [1932] AC 562
Dutton v Bognor Regis Urban District Council [1972] 1 QB 373
Franich v Swannell (1993) 10 WAR 459
Guiney v Australand Holdings Ltd [2008] NSWCA 44
Indermaur v Dames (1865 ‑ 66) LR 1 CP 274
Jones v Bartlett [2000] HCA 56; (2000) 205 CLR 166
Kadissi v Jankovic [1987] VR 255
Lipman v Clendinnen [1932] HCA 24; (1932) 46 CLR 550
Loose Fit Pty Limited v Marshbaum [2011] NSWCA 372
McCann v Switzerland Insurance Australia Ltd [2000] HCA 65; (2000) 203 CLR 579
Mitchell v Valherie [2005] SASC 350; (2005) 93 SASR 76
Murphy v Brentwood District Council [1991] 1 AC 398
Nissho Iwai Australia Ltd v Malaysian International Shipping Corp Berhad [1989] HCA 32; (1989) 167 CLR 219
Northern Sandblasting Pty Ltd v Harris [1997] HCA 39; (1997) 188 CLR 313
Provincial Insurance Australia Pty Ltd v Consolidated Wood Products Pty Ltd…
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- Case
- [2016] WASCA 143
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether Mr Verini's liability for the injury was directly or indirectly caused by, or arose out of, a breach of his duty as the 'owner or occupier' of the property in 1993/1994. The court was also required to determine if the exclusion clause applied to Mr Verini's claim for indemnity. The insurer argued that Mr Verini, as the original owner, owed and breached a duty of care to the claimants. However, the court found that the duty alleged was not related to Mr Verini's status as an owner but rather to his conduct during the construction of the balcony. The court concluded that the exclusion clause did not apply to Mr Verini's claim for indemnity as the liability in question did not arise from a breach of duty as 'owner or occupier'.
The court's reasoning hinged on the interpretation of the exclusion clause and the nature of the duty allegedly breached. The court found that the duty in question did not stem from Mr Verini's status as an owner but rather from his actions during the construction of the balcony. As such, the exclusion clause did not apply to Mr Verini's claim for indemnity. The court's decision was based on the principle that any duty that existed arose from Mr Verini's conduct in constructing the balcony, not from his status as an owner. The outcome of the appeal was that the insurer's claim for indemnity by Mr Verini was not excluded by the exclusion clause in the insurance policy.
The court's final orders were that the appeal be dismissed, and the decision of the trial judge was upheld. The exclusion clause in the insurance policy did not apply to Mr Verini's claim for indemnity, and the insurer was not entitled to indemnity from Mr Verini for the personal injury claims resulting from the defective balcony collapse.
Orders
Orders of the court
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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
The duty alleged in ground 1(a) was said to arise by reason of Mr Verini's ownership of the Ballajura property, and the following authorities were cited in support: Brookfield Multiplex Ltd v Owners Corporation Strata Plan 61288;[28] Caltex Refineries (Qld) Pty Ltd v Stavar;[29] Loose Fit Pty Limited v Marshbaum[30] and Tweed Shire Council v Hancomatic Music Pty Ltd.[31][28] Brookfield Multiplex Ltd v Owners Corporation Strata Plan 61288 [2014] HCA 36; (2014) 254 CLR 185 [22].[29] Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258; (2009) 75 NSWLR 649 [102] ‑ [103].[30] Loose Fit Pty Limited v Marshbaum [2011] NSWCA 372 [94], [97] ‑ [101].[31] Tweed Shire Council v Hancomatic Music Pty Ltd [2007] NSWCA 350 [213]. There was a second ground of appeal to the effect that the trial judge erred in concluding that Mr Verini's legal liability to each of the claimants for personal injury was not directly or indirectly caused by or did not arise out of a breach of Mr Verini's duty as the owner of the house. Counsel for WFI accepted that ground 2 would not arise for determination unless it succeeded on ground 1.[32][32] Appeal ts 21. In relation to ground 1, counsel for WFI withdrew any reliance on ground 1(b) which had, in effect, asserted error by the judge in not finding the 'Warning duty of care'. As noted earlier, that claim had not been pressed by WFI at the hearing at first instance.[33][33] Appeal ts 6. Also, counsel for WFI suggested a new duty of care in the course of oral argument. He said, in effect, that there was a duty to the effect that an owner of property must exercise reasonable care to keep the property free from any dangers which any subsequent owners of the property or their invitees may encounter in the future after he or she has ceased to own the property.[34] Counsel said that he could not point to any authority in direct support of that alleged duty, and that the closest case was Loose Fit Pty Limited v Marshbaum.[35] There was no application to amend the grounds of appeal in this regard.[34] Appeal ts 20.[35] Loose Fit Pty Limited v Marshbaum [2011] NSWCA 372. It was not suggested in the appeal that the effect of the exclusion clause was to exclude cover in respect of any liability that Mr Verini had as owner/occupier at the time of the Occurrence in 2009 of a building which was not then the subject of home or contents insurance with WFI.[36] In general terms, the parties approached the appeal on the basis that the question was whether Mr Verini's liability to the claimants for personal injury in 2009 was directly or indirectly caused by, or arose out of, a breach by Mr Verini of his duty as 'the owner or occupier' of the house on the Ballajura property in 1993/1994. [36] cf primary reasons [54]. More specifically, it was not the focus of WFI's case that in 1993/1994 Mr Verini, as occupier of the house being constructed on the Ballajura property, owed and breached a duty to the claimants. Rather, the focus of WFI's case, and the substantive issue in the appeal, was whether, for the purposes of the exclusion clause, Mr Verini as owner in 1993/1994 of the house being constructed on the Ballajura property, owed and breached a duty of care to the claimants as alleged in the grounds of appeal.