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

Weekly Insurance Law Review

Thursday, 19 February 2015

Executive Summary (One Minute Read)
Allianz Australia Insurance Ltd v Pomfret (NSWCA) - workers compensation - dust diseases - arguable case insurer liable to indemnify employer for its liability to worker
CGU Insurance Ltd v Davies (NSWCA) - workers compensation - employer liable for worker’s occupational disease - insurer required to indemnify employer
Merhi v Ford Motor Company of Australia (VSCA) - costs - appeal succeeded by application to admit fresh evidence - costs of appeal and application apportioned
Smith v Marshall [No 2] (WASC) - defamation - impugned imputations struck out
Stewart v Ackland (ACTCA) - negligence - student injured performing backward somersault on jumping pillow on farm – occupiers of farm who conducted amusement park business liable - appeal dismissed
McFadyen v Jenson (ACTSC) - motor vehicle accident - liability admitted - credit - medical evidence - damages assessed
Summaries With Link (Five Minute Read)
Allianz Australia Insurance Ltd v Pomfret [2015] NSWCA 4
Court of Appeal of New South Wales
Beazley P; McColl, Basten, Macfarlan & Meagher JJA
Workers compensation - insurance - employer’s liability for occupational disease - worker employed by company (Ceeco) in 1974 - worker employed by Ceeco again from early 1976 until 23/12/78 - worker exposed to asbestos dust and fibre during periods - up to 31/1/78, contract of insurance between Allianz and Ceeco indemnified Ceeco against liability as employer during policy period. - Ceeco deregistered - worker sued Allianz for compensation for asbestosis and related diseases - Allianz contended relevant disease under s151AB(1) Workers Compensation Act 1987 (NSW)  was asbestosis and that it was not liable because worker employed by Ceeco until 23/12/78 - when worker ‘last employed’ in conditions to nature of which occupational disease due Allianz claimed it was not ‘on risk’ - divisible or indivisible harm or injury - held: purpose of s151AB was to identify insurer liable to indemnify employer liable for occupational disease of gradual onset contracted over period of employment involving exposure to relevant harmful conditions - must be established that period of exposure caused or substantially contributed to harm subject of claim -  primary judge correctly concluded there was arguable case Allianz liable to indemnify Ceeco in respect of claimed liability to worker - appeal dismissed.  
Allianz Australia Insurance Ltd
[From Benchmark 16 February 2015]
CGU Insurance Ltd v Davies [2015] NSWCA 5
Court of Appeal of New South Wales
Beazley P; McColl, Basten, Macfarlan & Meagher JJA
Workers compensation - worker employed by company (Fowler) from 1940 to 1979 - worker employed from 1979 by another company (Seapip) - worker exposed to silica dust in in each employment - worker developed silicosis as result of inhaling dust - worker sued Fowler and Seapip - claim settled - appellant assumed liabilities of Fowler’s workers compensation insurer (South British) up to 30/6/79 - no known workers compensation insurer of Fowler after 30/6/79 and before it sold business to Seapip - appellant contended it was not liable to indemnify Fowler because policy which applied for period ending 30/6/79 only indemnified against liability accruing during period of insurance - held: relevant liability was for occupational disease caused only by exposure to silica dust during particular period - claim was in respect of period of employment to the nature of which the disease was due, which ended on 30/6/79 - that was time at which Fowler’s liability for disease was taken to have arisen by s151AB(1) Workers Compensation Act 1987 (NSW) - South British was on risk at that time and its policy indemnified Fowler against that liability - appeal dismissed.
CGU Insurance Ltd
[From Benchmark 13 February 2015]
Merhi v Ford Motor Company of Australia [2015] VSCA 13
Court of Appeal of Victoria
Neave, Tate & Santamaria JJ
Costs - Court allowed appeal against judgment that appellant had not suffered serious injury within s134AB(37)(a) or (c) Accident Compensation Act 1985 (Vic) - Court held grounds of appeal alleging error were not made out, but that appellant should be given leave to adduce fresh evidence - Court remitted matter to County Court to determine whether appellant was suffering from serious injury - held: appellant had failed to make out grounds of appeal but succeeded in having matter remitted as consequence of successful application to admit fresh evidence - apportionment of costs of appeal and application justified - respondent to pay 60% of costs of appeal and application.
[From Benchmark 13 February 2015]
Smith v Marshall [No 2] [2015] WASC 62
Supreme Court of Western Australia
K Martin J
Pleadings - defamation - action arising out of publication to Australian Shareholders’ Association as well as three other persons by open letter - defendants challenged natural and ordinary meaning imputations in plaintiff’s amended statement of claim - popular or false innuendos - defendants claimed imputations were manifestly groundless or untenable meanings, and that they were also embarrassing - held: three of four impugned imputations struck out.
[From Benchmark 19 February 2015]
Stewart v Ackland [2015] ACTCA 1
Court of Appeal of New South Wales
Penfold J; Walmsley & Robinson AJJ
Negligence - appellants were owner/occupiers of farm on which they conducted business involving amusement park - respondent university student injured when performing aerial backward somersault on jumping pillow owned by owner/occupiers - trial judge found owner/occupiers liable for respondent’s injuries - held: trial judge correctly decided activity in which respondent was engaged when injured was a dangerous recreational activity - no error in finding that risk was not obvious - open to trial judge to find breach of duty by appellants and that causation established - appeal dismissed.
[From Benchmark 17 February 2015]
McFadyen v Jenson [2015] ACTSC 12
Supreme Court of the Australian Capital Territory
Burns J
Damages - negligence - plaintiff was driving motor vehicle which was stationary in traffic when vehicle driven by first defendant collided with rear of plaintiff’s vehicle - second defendant was first defendant’s third party insurer - plaintiff injured as result of collision - extent of injury in dispute - defendants admitted liability - assessment of damages - medical evidence - credit - held: plaintiff was honest witness - damages assessed at $104,447.95 - judgment for plaintiff.
[From Benchmark 19 February 2015]