Australia: At The Courthouse

Last Updated: 26 January 2008
Article by James Bruun
All State Explorations NL v QBE Insurance (Australia) Ltd [2007] VSC 380

The Supreme Court of Victoria was called on to determine whether the insured's business interruption cover under an ISR policy it held with QBE was limited to claims arising from physical loss, destruction of or damage to Property Insured.

The insured operated the Beaconsfield Gold Mine in northern Tasmania when on Anzac Day 2006, a seismic disturbance caused a rock fall at the mine. An inspector under the Workplace Health and Safety Act 1995 (Tas) ordered that all mining activities cease until further notice. Mine operations were interrupted and the insured suffered loss.

The insured sought to access its business interruption cover under clause 23 of the policy. Clause 23 dealt with losses resulting from the actions of a civil authority and coverage included 'the closure of any Premises/operations by any civil authority due to the operation of a peril insured against.' It was common ground that the mine closure was not in consequence of physical damage to the mine. The insured claimed that clause 23 should respond whether the rock fall caused actual physical damage or not.

The Court, in finding in favour of QBE, stated that when the policy was read as a whole it provided cover for losses arising from, or consequent upon, any event causing physical loss, destruction of or damage to any property insured subject to the exclusions. As such, this requirement applied equally to the interpretation of clause 23. The Court observed that any other construction would not accord with commercial common sense. The insured is appealing the decision.

Rogers v Interpacific Resorts (Australia) Pty Ltd [2007] QSC 239

This claim arose from injuries sustained by the plaintiff during the use of a jet ski which he hired during his stay at a holiday resort in Queensland. The plaintiff was riding as a pillion passenger on a jet ski driven by his son at the resort. The plaintiff and his son fell from the jet ski and the plaintiff sustained injuries to his eye and face.

The plaintiff successfully sued the resort for breach of duty of care for its failure to protect him from the risk of injury associated with the operation of a jet ski.

The resort denied liability and argued that the risks of using a jet ski were plainly obvious and that the plaintiff voluntarily assumed the risks of this adventure activity.

The Queensland Supreme Court noted that the plaintiff and his son were novices and neither had operated a jet ski prior to the day of the incident. This was a fact known by the resort at the time of hire. The training provided was brief and 'over in a few seconds' according to the plaintiff. The Court held that the training provided was inadequate and ought to have included instruction to the plaintiff and his son regarding the use of the throttle and turning technique. It should have also included a practice run under the watchful eye of the instructor.

The plaintiff was awarded damages of almost $600,000.

Insurance Australia Ltd (ACN 000 016 722) v HIH Casualty & General Insurance Ltd (in LIQ) (ACN 008 482 291) [2007] VSCA 223

The insured, Ron Steele operated a scaffolding business. In 1998, he was contracted to erect scaffolding which supported a large video screen at the Australian Grand Prix. The scaffolding collapsed and the insured was successfully sued for breach of contract in the sum of $1.5 million (NSW Judgment).

The insured claimed on his HIH policy. Prior to the collapse of HIH in 2001, it had accepted Steele's claim and paid approximately $80,000 towards legal costs incurred. The NSW Judgment was satisfied as to 90% by HIH Claims Support Ltd (HCSL), which administers the Federal Government's HIH rescue package.

Steele also held a contract works material damage and third party liability policy with SGIC. After HCSL satisfied 90% of the NSW judgment, two claims were made against SGIC under that policy:

  • HCSL brought a claim for equitable contribution against SGIC for its payment toward the insured's costs in the NSW proceedings.
  • The insured sought indemnity for damages and costs awarded against him in the NSW proceedings.

The trial judge concluded that the SGIC policy responded and that SGIC was liable to make equitable contribution to HCSL for its costs to the extent of 50%. He also ruled that the insured was entitled to be paid again under the SGIC policy because the agreement between HCSL and the insured was not a contract of insurance such as to cause HCSL to become his insurer. The trial judge was of the view that the HCSL payment did not constitute indemnity such as to disentitle the insured from claiming under the SGIC policy. The trial judge characterised the HCSL payment as an exgratia benefit (similar to bushfire relief and social security payments) provided by the Cth Government to alleviate, in certain circumstances, financial distress caused by the collapse of HIH.

SGIC's appeal to the Supreme Court of Victoria was upheld. The Court agreed that the insured had no right for payment under the SGIC policy as he had effectively been indemnified for the same risk by the HCSL payment. Once HCSL accepted the insured's offer to assign his relevant rights to it by effective payment of 90% of the NSW judgment, an enforceable contract came into existence between the two parties. The insured was not entitled to be paid again under the SGIC policy.

Phillips Fox has changed its name to DLA Phillips Fox because the firm entered into an exclusive alliance with DLA Piper, one of the largest legal services organisations in the world. We will retain our offices in every major commercial centre in Australia and New Zealand, with no operational change to your relationship with the firm. DLA Phillips Fox can now take your business one step further − by connecting you to a global network of legal experience, talent and knowledge.

This publication is intended as a first point of reference and should not be relied on as a substitute for professional advice. Specialist legal advice should always be sought in relation to any particular circumstances and no liability will be accepted for any losses incurred by those relying solely on this publication.

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