Weekly Insurance Law Review Saturday, 7 March 2015 View in browser

A daily Bulletin listing our choice of Decisions of Superior Courts of Australia.

Weekly Insurance Law Review

Executive Summary (One Minute Read)
Connaughton v Pacific Rail Engineering Pty Ltd (NSWDC) - tree fell on truck - Motor Accidents Compensation Act 1999 (NSW) - statutory interpretation - blameless accident - causation - verdict for plaintiff
Allianz Australia Insurance Ltd v Moo Ok Park (NSWSC) - motor accidents compensation - past economic loss - inadequate reasons – assessor’s decision quashed
Davidson v Transport Accident Commission (VSCA) - transport accident - injury to wrist was a serious injury - appeal allowed
Swick Nominees Pty Ltd v Leroi International Inc [No 2] (WASCA) – product liability – multiple failures of air compressor unit – no breach of duty by manufacturer
Fogarty v CGU Insurance Ltd (ACTSC) – insurance contact – no breach by insurer of obligation to repair or duty of utmost good faith
Summaries With Link (Five Minute Read)
Connaughton v Pacific Rail Engineering Pty Ltd, NSWDC, 12 February 2015
District Court of New South Wales
Norton SC DCJ
Plaintiff injured when his truck collided with a fallen or falling tree – trial on liability and whether the accident was a blameless accident - s7A Motor Accidents Compensation Act 1999 (NSW) - held: the tree fell on the truck as the plaintiff was driving it; the plaintiff did not drive the truck into a fallen tree - in statutory interpretation, legislative intention is the intention to be inferred from the words actually used in the statute, not the subjective intention of members of the legislature that passed the statute - s3A Motor Accidents Compensation Act does not apply to blameless accidents - as there was no negligence or other tort by the plaintiff or the truck’s owner, the accident was a blameless accident - even under the extended definition of causation in s7E, the plaintiff did not cause the accident - verdict for plaintiff – damages to be assessed.
[From Benchmark 2 March 2015]
Allianz Australia Insurance v Moo Ok Park [2015] NSWSC 122
Supreme Court of New South Wales
Harrison AsJ
Motor accidents compensation - past economic loss - claimant injured in motor vehicle accident - Allianz was compulsory third party insurer for driver at fault - liability not in issue - Allianz sought to set aside decision of claims assessor - insurer contended assessor’s reasoning for awarding past economic loss was erroneous - held: it was not clear how assessor arrived at weekly amounts - reasoning process that led assessor to make conclusions had not been set out as required by clause 18.4.3 Claims Assessment Guidelines - assessor failed to provide proper reasons -  decision invalid and quashed
Allianz Australia Insurance
[From Benchmark 3 March 2015]
Davidson v Transport Accident Commission [2015] VSCA 12
Court of Appeal of Victoria
Ashley, Whelan & Beach JJA
Accident compensation - applicant injured wrist in transport accident - primary judge dismissed applicant’s serious injury application under s93(4)(d) Transport Accident Act 1986 (Vic) - held: there was specific error in primary judge’s treatment of applicant’s prospects of obtaining career as chef but for accident - applicant’s impairment of function of wrist, her youth and fact that impairment would be suffered over adult lifetime led to Court’s conclusion that impairment of wrist function satisfied very considerable test - appeal allowed.  
[From Benchmark 2 March 2015]
Swick Nominees Pty Ltd v Leroi International Inc [No 2] [2015] WASCA 35
Court of Appeal of Western Australia
Buss & Murphy JJA; Edelman J
Negligence – product liability – contract - action for damages against respondents in connection with appellant’s purchase by of air compressor unit - trial judge dismissed claim against manufacturer and allowed claim against supplier – appellant contended primary judge erred in dismissing claim against manufacturer and in assessment of quantum of damages – multiple failures of complex machinery - fitness for purpose – pure economic loss – whether trial judge should have found manufacturer breached duty of care - res ipsa loquitur – proof of negligence - held: trial judge correct to find no breach of duty by manufacturer – no issue of quantification of damages in relation to manufacturer – no error in assessment of damages for breach of contract by supplier – appeals dismissed.
Swick Nominees Pty Ltd
[From Benchmark 3 March 2015]
Fogarty v CGU Insurance Ltd [2015] ACTSC 44
Supreme Court of the Australian Capital Territory
Murrell CJ
Insurance contract – insurer entered contract with appellant to insure building and contents against accidental loss or damage, including damage by fire – fire in kitchen of premises – insurer accepted claim and elected to repair damage – dispute arose in relation to damaged caused to three kitchen floorboards – insured sued insurer under s57 Insurance Contracts Act 1984 (Cth) for cost of repairs - insured asserted insurer breached contract by failing to repair damage – Magistrate entered judgment for insured – parties appealed and cross-appealed – held: grounds of appeal and cross-appeal in relation to specific performance allowed - Magistrate erred in finding insurer breached contractual obligation to repair and in finding that insurer breached its duty of utmost good faith – cross-appeal upheld – verdict for insurer
[From Benchmark 3 March 2015]
Sunday Evening in the Common
By John Hall Wheelock
LOOK—on the topmost branches of the world  
  The blossoms of the myriad stars are thick;     
  Over the huddled rows of stone and brick,      
A few, sad wisps of empty smoke are curled     
  Like ghosts, languid and sick.             
One breathless moment now the city’s moaning          
  Fades, and the endless streets seem vague and dim;           
  There is no sound around the whole world’s rim,       
Save in the distance a small band is droning   
  Some desolate old hymn.  
Van Wyck, how often have we been together   
  When this same moment made all mysteries clear;   
  —The infinite stars that brood above us here,
And the gray city in the soft June weather,        
  So tawdry and so dear!
John Hall Wheelock