Weekly Insurance Law Review: Friday, 24 July 2015 View in browser
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A daily Bulletin listing our choice of Decisions of Superior Courts of Australia.

Weekly Insurance Law Review

Executive Summary (One Minute Read)
J Cummins Pty Ltd v F & D Bonaccorso (NSWCA) - contract - option agreement - no common intention deposit to be treated as paid - appeal dismissed
Falco v Aiyaz; Falco v Falzon (NSWCA) - motor accidents compensation - psychiatric injury - damages - appeal dismissed - cross-appeal allowed
“B” v Reineker (NSWSC) - trespass to the person - sexual assault by teacher against student - trespass established - judgment for student in sum of $1,228,000
Dean's Pty Ltd v Laratae (VSC) - judicial review - accident compensation - estoppel - Magistrate’s decision to refuse to refer question to medical panel quashed
Petchell v Du Pradal; Pia Du Pradal Pty Ltd v Petchell (QCA) - negligence - snorkeler run over by boat - boat driver liable - assessment of damages - ‘per quod servitium’ - appeals dismissed
Wynne v Davey (QSC) - negligence - collision between motorcycle and campervan - driver of campervan negligent - motorcyclist contributorily negligent - liability apportioned at 85% for driver and 15% for motorcyclist
Belgravia Nominees Pty Ltd v Lowe Pty Ltd (WASCA) - partnership - dissolution of partnership before commencement of proceedings by one partner - accrued rights held jointly by partners - other partner joined to proceedings
Austin v Verini (WASC) - insurance policy - balcony collapse - exclusion clause - insurer liable to indemnify owner builder for injuries suffered by plaintiffs
Maples Winterview Pty Ltd v Liu (ACTSC) - contract - standard form building contract - builder not entitled to payments following its termination of contract - judgment for defendants
Summaries With Link (Five Minute Read)
J Cummins Pty Ltd v F & D Bonaccorso [2015] NSWCA 200
Court of Appeal of New South Wales
Beazley P; Ward & Leeming JJA
Contract - evidence - credit - appellant sought rectification of option agreement it entered with respondent, and order for specific performance of rectified agreement - agreement preceded by an earlier option agreement not exercised prior to its expiry - second option agreement provided for higher purchase price - whether common intention at time second option agreement entered that stated deposit to be treated as if paid - trial judge found no such common intention established - held: trial judge justified in not accepting evidence of appellant’s principal of an arrangement outside formal contract documents - evidence did not support principal’s version of events - there was evidence that developer interested in property at higher price than in either option agreement - appellant’s contention rejected that price in second agreement was commercially irrational - appeal dismissed.
[From Benchmark Thursday, 16 July 2015]
Falco v Aiyaz; Falco v Falzon [2015] NSWCA 202
Court of Appeal of New South Wales
Macfarlan & Emmett JJA; Sackville AJA
Motor accidents compensation - appellant developed psychiatric conditions following two separate motor vehicle accidents in which vehicle in which she was travelling was struck from behind - appellant sued drivers of the two vehicles - no question of liability of drivers - appellant contended damages awarded in her favour were inadequate - appellant claimed primary judge erred in concluding she exaggerated her symptoms - held: challenge to primary judge’s finding that appellant considerably exaggerated her symptoms failed - no appellable error in assessment of extent of appellant’s psychiatric disabilities attributable to accidents - primary judge erred in awarding damages against drivers for gratuitous care services - Motor Accidents Compensation Act 1999 (NSW) precluded award of damages for gratuitous care services against each driver - appeal dismissed - cross-appeal allowed.
[From Benchmark Tuesday, 21 July 2015]
“B” v Reineker [2015] NSWSC 949
Supreme Court of New South Wales
Adamson J
Trespass to the person - “B” commenced proceedings for damages for trespass against defendant and for negligence against school - defendant was employed by school and “B”’s teacher - claim against school resolved by agreement - principal allegation was that “B” was sexually assaulted by defendant between 2001 and 2008 - defendant pleaded guilty to offences of aggravated indecent assault and unlawful sexual intercourse - at time of hearing defendant still in custody serving sentence - held: plaintiff established cause of action in trespass against defendant - plaintiff was below age of consent for large proportion of assaults - in circumstances it would be unreal to regard plaintiff as able to form judgment whether to consent merely because she had reached biological marker - judgment for plaintiff against defendant in sum of $1,228,000.
[From Benchmark Wednesday, 22 July 2015]
Dean's Pty Ltd v Laratae [2015] VSC 341
Supreme Court of Victoria
Zammit J
Judicial review - accident compensation - employer sought to quash decision of Magistrate not to refer question to medical panel concerning whether employment was or could have been significant contributing factor to alleged injury - Magistrate held employer was estopped from contesting injury alleged by worker on basis of an issue estoppel arising as result of decision in application for leave to bring damages proceedings under s134AB(16)(b) Accident Compensation Act 1985 (Vic) - held: on natural reading of s134AB(19A) Court unable to infer legislative intention for issue estoppel to arise from all findings made in serious injury application in relation to all subsequent proceedings - no issue estoppel arose - judge did not have jurisdiction to determine causation of worker’s injuries other than incidentally and for limited purpose - judges finding able to be re-litigated - finding not a final and conclusive determination on merits - Magistrate’s decision quashed - matter remitted to Magistrate’s Court for referral of all medical questions to medical panel.
[From Benchmark Tuesday, 21 July 2015]
Petchell v Du Pradal; Pia Du Pradal Pty Ltd v Petchell [2015] QCA 132
Court of Appeal of Queensland
Gotterson JA; Atkinson & Martin JJ
Mullins J
Negligence - snorkeler injured while snorkelling when run over by motor boat driven by driver - third party was in snorkeler’s motor boat at time of accident - driver failed to comply with speed limit - driver noticed plaintiff's orange dive float but failed to slow down and navigate path clear of the dive float and diver – snorkeler’s employer brought claim for damages against driver for action ‘per quod servitium’ - primary judge found snorkeler established accident caused by driver’s breach of duty of care owed to him, and no contributory negligence - driver’s claim against third party dismissed - employer's claim against driver dismissed - driver appealed against award of damages in respect of past and future economic loss - employer appealed from dismissal of claim - ss59 & 60 Civil Liability Act 2003 (Qld) - s11 Civil Liability and Other Legislation Amendment Act 2010 (Qld) - rr5(1), r50(1)(b),155 & 375(1) Uniform Civil Procedure Rules 1999 (Qld) - held: driver’s challenges to assessment of damages, and employer’s challenge to dismissal of claim failed - appeal dismissed.
[From Benchmark Monday, 20 July 2015]
Wynne v Davey [2015] QSC 200
Supreme Court of Queensland
Burns J
Negligence - plaintiff motorcyclist claimed damages for injuries and loss arising out of collision with campervan - first defendant was driver of campervan - quantum of damages agreed - only issue was liability - s23 Civil Liability Act 2003 (Qld) - regs 37, 38 & 132 Transport Operations (Road Use Management—Road Rules) Regulation 2009 (Qld) - held: first defendant negligent to substantial degree - U-turn first defendant attempted which ended in collision flouted road rules and was dangerous manoeuvre - first defendant knew a motorcycle was travelling towards his position but turned without looking - plaintiff negligent to lesser degree - plaintiff knew existence of campervan and approached its position too fast to evade collision if vehicle pulled out onto roadway - by travelling at speed he did, plaintiff guilty of contributory negligence - liability apportioned at 85% for driver, and 15% for plaintiff - judgment for plaintiff
[From Benchmark Wednesday, 22 July 2015]
Belgravia Nominees Pty Ltd v Lowe Pty Ltd [2015] WASCA 143
Court of Appeal of New South Wales
McLure P; Buss & Murphy JJA
Partnership - appellant claimed it and company (Penhurst) carried on business in partnership - partners and another entered agency agreement with first respondent -partnership made payments to first respondent - partnership dissolved - appellant pleaded multiple causes of action against respondents - primary issue on appeal was whether, following dissolution of partnership, s49 Partnership Act 1895 (WA) was exclusive source of partner's right to bring proceedings to recover partnership property - held: partnership's accrued rights to take action against first respondent for breach of agency agreement and to recover statutory debt were held jointly by appellant and Penhurst - Penhurst must be joined as plaintiff with its consent, or made a defendant absent its consent under O18 r4(2) Rules of the Supreme Court 1971 (WA) - rule applied where plaintiff claimed relief to which any other person was entitled jointly with him - s49 not exclusive source of partner's accrued right to take legal proceedings in respect of partnership property after dissolution of partnership - appeal allowed.
[From Benchmark Monday, 20 July 2015]
Austin v Verini [2015] WASC 258
Supreme Court of Western Australia
Allanson J
Insurance contract - exclusion clause - personal legal liability cover - preliminary question - balcony collapsed at house while owners holding party - plaintiffs standing on balcony when it collapsed and suffered injury - house built by defendant - plaintiffs sued defendant - defendant issued third party notice against insurer claiming indemnity against plaintiffs' claims under policy - insurer contended exclusion clause applied - exclusion clause stated insurer did not insure against liability for personal injury caused by or arising out of breach of insured’s duty as owner or occupier of building which was not insured by insurer at time of occurrence that caused injury - parties agreed insurer did not insurer defendant against loss or damage to house or contents at time of balcony collapse - whether third party liable to indemnify defendant - whether liability of defendant for breach of duty was breach as owner - whether ownership integral to duty of care - construction of policy - ss4 & 4A(1)(c) Builders' Registration Act 1939 (WA) - held: both parties accepted defendant had duty of care to plaintiffs and breached that duty - Court satisfied duty was not a duty 'as the owner' - insurer liable to indemnify defendant - defendant entitled to orders sought in third party statement of claim.
[From Benchmark Wednesday, 22 July 2015]
Maples Winterview Pty Ltd v Liu [2015] ACTSC 58
Supreme Court of the Australian Capital Territory
Mossop AsJ
Contract - standard form building contract - plaintiff building company sued first and second defendants who were joint owners of property - claim sought payment of amount owing following termination of building contract by plaintiff - whether contract validly terminated for defendants’ breach of obligation to pay one or more payment claims - held: due to plaintiff’s failure to install under slab insulation, plaintiff had no entitlement to progress payment for stages 2 and following - because plaintiff not entitled to make those progress claims it was not entitled to further money by reason of adjustment of contract price - plaintiff not entitled to make the claims it did on certain date and defendants not in breach of contract by failing to make payments - plaintiff not entitled to terminate contract - entitlement to payment dependent upon contract being terminated in accordance with clause - contract not terminated by plaintiff in accordance with that clause - plaintiff not entitled to payment under clause - defendant’s failure to obtain loan from bank was not breach of contract - judgment for defendants.
[From Benchmark Monday, 20 July 2015]
La Belle Dame sans Merci: A Ballad
By John Keats

O what can ail thee, knight-at-arms,
Alone and palely loitering?
Thesedgehas withered from the lake,
And no birds sing.

O what can ail thee, knight-at-arms,
Sohaggardand so woe-begone?
The squirrel’s granary is full,
And the harvest’s done.

I see a lily on thy brow,
With anguish moist and fever-dew,
And on thy cheeks a fading rose
Fast withereth too.

I met a lady in themeads, Full beautiful—a faery’s child,
Her hair was long, her foot was light,
And her eyes were wild.

I made a garland for her head,
And bracelets too, and fragrant zone;
She looked at me as she did love,
Andmade sweet moan

I set her on my pacing steed,
And nothing else saw all day long,
For sidelong would she bend, and sing
A faery’s song.

She found me roots of relish sweet,
Andhoney wild, and manna-dew,
And sure in language strange she said—
‘I love thee true’.

She took me to herElfin grot,
And there she wept and sighed full sore,
And there I shut her wild wild eyes
With kisses four.

And there she lullèd me asleep,
And there I dreamed—Ah! woe betide!—
The latest dream I ever dreamt
On the cold hill side.

I saw pale kings and princes too, Pale warriors, death-pale were they all;
They cried—‘La Belle Dame sans Merci
Thee hathin thrall!’

I saw their starved lips in thegloam,
With horrid warning gapèd wide,
And I awoke and found me here,
On the cold hill’s side.

And this is why Isojournhere,
Alone and palely loitering,
Though the sedge is withered from the lake,
And no birds sing.

John Keats