Daily Insurance: Monday, 3 August 2015 View in browser
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AR Conolly Company Lawyers.
A daily Bulletin listing our choice of Decisions of Superior Courts of Australia.

Daily Insurance

Executive Summary (One Minute Read)
Zurich Insurance PLC UK Branch v International Energy Group Ltd (UKSC) - negligence - insurance - employee with mesothelioma - insurer’s liability to indemnify employer - rule of proportionate recovery - appeal allowed
Adisan Pty Ltd v Irwin (NSWCA) - contract - loan agreement - consumer law - guarantee did not extend to cover amended loan facility - appeal dismissed
Rodriguez & Sons Pty Ltd v Queensland Bulk Water Supply Authority t/as Seqwater (No 3) (NSWSC) - pleadings - class action - flood - plaintiff permitted to file further amended statement of claim
Carolan v Fairfax Media Publications Pty Ltd (No 2) (NSWSC) - defamation - interlocutory applications - directions concerning statutory defence of qualified privilege - permission to file a notice of election for a trial by jury refused
Coles Group Ltd v Costin (QCA) - limitation of actions - prejudice - extension of limitation to stand provided plaintiff provide undertaking not to prosecute aspect of claim
Summaries With Link (Five Minute Read)
Zurich Insurance PLC UK Branch v International Energy Group Ltd [2015] UKSC 33
Supreme Court of the United Kingdom
Lord Neuberger, Lord Mance, Lord Clarke, Lord Sumption, Lord Reed, Lord Carnwath & Lord Hodge
Negligence - insurance - employee was negligently exposed to asbestos dust by employer - employee contracted mesothelioma - before his death from mesothelioma employee sued respondent as successor in title of employer and recovered compensation - during the 27 years of employee’s exposure employer had two identifiable liability insurances one of which was with Midland Assurance Ltd - appellant (Zurich) was successor to Midland - appellant maintained it was only liable to meet 22.08% of respondent’s loss and defence costs because Midland only insured employer for 6/27ths of 27 year period - trial judge ordered Zurich to meet 22.08% of compensation but 100% of defence costs - Court of Appeal ordered Zurich to pay 100% of both compensation and defence costs - Zurich appealed - appeal was from Guernsey where there was no equivalent of Compensation Act 2006, which had reversed ruling in Barker v Corus [2006] UKHL 20 that each employer was only liable pro rata to period which exposure by it bore to total of all periods of exposure - held: rule of proportionate recovery established in Barker remained part of common law in Guernsey - Zurich’s appeal allowed in respect of compensation but dismissed in relation to defence costs - trial judge’s order restored.
Adisan Pty Ltd v Irwin [2015] NSWCA 217
Court of Appeal of New South Wales
Beazley ACJ, Meagher & Gleeson JJA
Contract - guarantee and indemnity - loan agreement between appellant lender and borrower - loan agreement guaranteed by six co-guarantors including respondent - borrower failed to pay money on agreed date - terms of loan renegotiated - proposed amendments included provision of mortgage over property owned by company and guarantee from company - lender, borrower and company agreed that company’s liability as guarantor limited to amount realised from sale of property - Deed of Variation executed by appellant, borrower, guarantors and company - agreement as to company’s liability not disclosed in Deed or otherwise - borrower failed to pay money due - appellant required payment from guarantors - respondent contended he was discharged from liability as guarantor because of agreement to cap company’s liability - primary judge found in favour of respondent - held: respondent not liable as guarantor for money not paid in accordance with original loan facility - guarantee provided for extension of its application to cover amended facility with guarantor’s consent - respondent’s execution of Deed not effective to extend guarantee to cover moneys due under loan contract as varied as lender, in obtaining respondent’s consent by execution of Deed, did not disclose that ‘proposed new loan contract’ included agreement to cap company’s liability - statement in Deed reasonably to be understood as representing that company agreed to guarantee whole obligations of borrower, which was a misleading representation - however respondent not likely to suffer damage from conduct as guarantee did not extend to cover amended facility - appeal dismissed.
Rodriguez & Sons Pty Ltd v Queensland Bulk Water Supply Authority t/as Seqwater (No 3) [2015] NSWSC 838
Supreme Court of New South Wales
Beech-Jones J
Pleadings - class action - flood - claim arising from alleged negligent operation of dams - plaintiff sought leave to file further amended statement of claim - consideration of objections to grant of leave by certain defendants including alleged disparity between definition of class and the pleaded case, alleged failure to sufficiently identify alleged acts and admissions of flood engineer, deficiency of pleaded breaches of “Flood Mitigation Manual” by flood engineers, and complaint concerning cross referencing between particulars of various breaches and parts of expert report - hydrolic expert evidence - held: plaintiff granted leave to file further amended statement of claim.
Carolan v Fairfax Media Publications Pty Ltd (No 2) [2015] NSWSC 1010
Supreme Court of New South Wales
McCallum J
Defamation - two interlocutory applications - plaintiff sought directions concerning defence of statutory qualified privilege - defendant sought orders to permit them to file notice of election for trial by jury where no notice filed within time under rules - ss14, 56, 57, 58 59, 61 & 63 Civil Procedure Act 2005 (NSW) - ss21 & 30 Defamation Act 2005 (NSW) - s126K Evidence Act 1995 (NSW) - held: plaintiff granted directions as sought - defendants to notify plaintiff in writing whether they maintained defence under s30 Defamation Act and, if so, the identity of any confidential sources relied upon by them, or statement they did not propose to disclose identities - plaintiff to give notice whether he intended to apply under s126K(2)Evidence Act in relation to confidential sources relied on by defendants or any other application in defence of statutory qualified privilege - Court not persuaded it had power to grant relief sought by defendants.
Coles Group Ltd v Costin [2015] QCA 140
Court of Appeal of Queensland
Holmes & Gotterson JJA; Applegarth J
Limitation of actions - respondent injured her left knee on 31/705 when working for Coles - in 2009 respondent consulted lawyers who issued urgent notice of claim for damages on 3/9/09 - limitation period had expired - new lawyers sought extension of time - Coles conceded that material fact of decisive character relating to respondent’s right of action not within respondent’s means of knowledge before June 2009 - other requirements of s31(2) Limitation of Actions Act 1974 (Qld) met - whether primary judge erred in exercising discretion to grant extension exercised in respondent’s favour - held: exercise of discretion miscarried in circumstances in which respondent did not undertake to avoid material prejudice to Coles arising from witnesses’ having no recollection of detail of training and instruction provided to her - leave to appeal granted to correct injustice to Coles - relevant prejudice related to only one aspect of claim - unjust to prevent respondent from litigating other aspects of her claim - injustice to Coles could be addressed by respondent providing undertaking to not prosecute relevant aspect of claim - if undertaking provided order extending limitation period should stand