Australia: The High Court Finds That An Insurer Bears The Onus Of Proof When Asserting A Limited Level Of Cover

Curwoods Case Note - Asbestos Litigation
Last Updated: 31 March 2010
Article by Andrew Spearritt and David Chong

Wallaby Grip Limited v QBE Insurance (Australia) Limited; Stewart v QBE Insurance (Australia) Limited [2010] HCA 9

Judgment date: 30 March 2010, High Court of Australia1

In Brief

  • The High Court of Australia was asked to consider whether an insurer's liability to indemnify a NSW employer was limited to the minimum level of cover under the common law extension to the statutory form of workers compensation policy.
  • A crucial consideration was which party bore the onus of proving whether there was any limit to the level of cover afforded under the policy of insurance.
  • The High Court found that a plaintiff is required to establish that a policy of insurance was in existence at the relevant time and responded to the claim. However, the actual level of cover (if limited) was a separate issue which required proof from the insurer asserting that the policy was limited.


Angus Stewart commenced proceedings in the Dust Diseases Tribunal of New South Wales seeking damages in respect to the condition of mesothelioma alleged to have arisen from his exposure to asbestos whilst employed by Pilkington Bros (Australia) Limited from 1964 to 1967.

Proceedings in the Tribunal were commenced against QBE Insurance (Australia) Limited (QBE) on the basis that it was the relevant workers compensation insurer of the plaintiff's employer at the relevant time. Proceedings were also issued against the alleged manufacturer and supplier of the asbestos products to which the plaintiff was exposed.

Dust Diseases Tribunal Decision

Judgment was entered in favour of the plaintiff against the defendants sued and QBE was granted leave to appeal.

QBE did not produce any evidence in relation to any contract of insurance between it, or its predecessors and the employer. There was therefore no evidence before the trial judge in relation to the level of cover available under the relevant policy of insurance.

The trial judge adopted the findings of Curtis J in Di Cecco v Mercantile Mutual Insurance (Workers Compensation) Limited2 in which it was held that the insurer bore the onus of establishing that the relevant policy of insurance was limited in its cover.

The trial judge found that it was within the power of QBE to have called evidence from a number of people in the insurance industry as to practices in similar circumstances which may have assisted in determining whether at the relevant time, policies tended to be underwritten for the statutory limit only, an amount greater than the statutory limit or perhaps without a limit.

In the absence of any proof of the level of cover available pursuant to the common law extension to the statutory form of workers compensation policy, it was held that QBE had an unlimited level of cover as distinct from the amount of $40,000, being the minimum limit of an employers' indemnity policy under the Workers Compensation Act 1926 (NSW) as at 1967.

Court of Appeal Decision

The main issue raised on appeal was the extent of the liability of QBE as an insurer.

The Court of Appeal noted that in its defence of the primary action, QBE expressly put the extent of cover in issue. The Court of Appeal (Ipp JA, and Gyles AJA, Brereton J dissenting) then held that the trial judge erred in holding that the insurer bore the onus to establish that the policy of insurance was limited. The fact that QBE could not produce a copy of the relevant policy did not transfer the onus of proof from the plaintiff to QBE.

In his dissenting judgment Brereton J found that the plaintiff was not required to plead or prove every term of the contract; it need only plead and prove sufficient to establish the existence of an enforceable contract of insurance containing the terms on which it relied. However, if QBE intended to rely upon any other term of the contract, it bore the onus of proving that term.

Brereton J held that a fundamental contractual and pleading principle required a party relying on a term of a contract to show that it did all that was reasonable in the circumstances to bring the relevant term to the attention of the plaintiff. Brereton J found that QBE bore the onus of proving any limitation of the level of cover available and that it failed to discharge that onus.

However, the majority of the NSW Court of Appeal (Ipp JA and Gyles AJA) found that QBE was entitled to rely upon the statutory minimum level of cover.

High Court Decision

QBE argued that if an employer and insurer were to agree on an amount of cover greater than the statutory minimum, s 18(3)(a) of the Workers Compensation Act 1926 (NSW) required that a policy first be issued in the prescribed form (which contained the statutory minimum) and then amended.

It was QBE's contention that as the plaintiff was claiming that the policy of insurance had been altered from the prescribed form to provide a level of cover greater than the statutory minimum then the plaintiff was required to prove that a higher level of cover had been agreed upon between employer and insurer.

The High Court observed that given indemnity could be for any amount, it did not seem sensible to suggest that the Act required that a policy first be obtained for the statutory minimum amount and then amended by endorsement.

The High Court made reference to three elements ordinarily present in circumstances where an insurer is held liable to indemnify. Those elements were the insured event, the subject matter insured, and the cause of the loss suffered (or risk).

In the present proceedings, the insured event was regarded as the liability of the insured employer to the plaintiff for a common law injury. The subject matter was employees of the insured (which the plaintiff satisfied) and the risk was injury to an employee.

It was found that if the three elements referred to above were established, the policy of insurance and the obligation to indemnify would be triggered.

The actual amount payable under the policy of insurance was a separate issue to the question of indemnity and QBE bore the onus of proving that there was some limitation on the amount of cover. In the absence of such proof, the policy of insurance would be deemed to respond to the actual loss (being the judgment amount awarded).

The plaintiff's obligation was limited to establishing that a policy of insurance existed at the relevant time and that the policy of insurance responded to the claim. Any limitation on the policy was a separate issue which QBE bore the onus of proving.


  1. This decision overturned the NSW Court of Appeal's findings and has upset the practice otherwise adopted by workers compensation insurers in the Dust Diseases Tribunal of asserting on the statutory minimum level of cover in the absence of any evidence to the contrary.
  2. It will be necessary for insurers asserting a limited level of cover to be able to adduce evidence that the policy of insurance was limited. This may be particularly difficult in latent disease claims given that the periods of insurance called on were underwritten from the 1950s through to the 1970s.
  3. It is now critically important for insurers (and helpful for insureds) to keep accurate and comprehensive records of policies issued to demonstrate the level of cover available, especially given the damages regime under which the Dust Diseases Tribunal of New South Wales operates.

1. French CJ, Gummow, Hayne, Heydon and Kiefel JJ

2. [2002] NSWDDT 1

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.