Bluescope Steel Limited v Allianz Australia Limited [2013] NSWDDT 3

Bluescope Steel Limited v Allianz Australia Limited [2013] NSWDDT 3

BlueScope and its solicitor had actual knowledge before the bedside hearing that Allianz insured BlueScope for relevant pre-30 September 1979 workers compensation liability, and BlueScope breached condition 2 by failing to notify Allianz before that hearing. However, Allianz suffered no irretrievable or substantive prejudice from the late notification or from the joint representation of BlueScope and BHP. Counsel at the bedside hearing did not deliberately refrain from asking questions to favour BHP, and the plaintiff's poor health, inconsistent evidence and the Browne v Dunn undertaking meant Allianz did not lose a real forensic opportunity. Allianz could rely only on late notification,...

Jurisdiction
Australia
Judgment Date
15 March 2013
Procedural Posture
Cross Claim for Indemnity Under a Workers Compensation Insurance Policy Arising From Asbestos Related Mesothelioma Proceedings / Principal Judgment After Hearing; Verdict on the Cross Claim and Short Minutes of Order Directed
Outcome
Verdict for the cross-claimant for the amounts claimed and interest.
Legal Topics
['asbestos Exposure During Employment' 'mesothelioma' 'insurance Indemnity' 'breach of Insurance Policy Conditions' 'late Notification of Claim' 'insurer Prejudice' 'utmost Good Faith' 'section 18 Insurance Act 1902' 'conflict of Interest in Joint Representation' 'browne V Dunn Undertaking']
['dust Diseases' 'insurance' 'workers Compensation' 'civil Procedure' 'professional Negligence'] ['asbestos Exposure During Employment' 'mesothelioma' 'insurance Indemnity' 'breach of Insurance Policy Conditions' 'late Notification of Claim' 'insurer Prejudice' 'utmost Good Faith' 'section 18 Insurance Act 1902' 'conflict of Interest in Joint Representation' 'browne V Dunn Undertaking']

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Procedural Posture

Cross Claim for Indemnity Under a Workers Compensation Insurance Policy Arising From Asbestos Related Mesothelioma Proceedings / Principal Judgment After Hearing; Verdict on the Cross Claim and Short Minutes of Order Directed

Legal Issues

  1. 1 ['Whether BlueScope was insured by Allianz under a workers compensation policy covering liability to Mr Jackson for pre-30 September 1979 employment with John Lysaght at Newcastle.' "Whether BlueScope breached condition 2 of the policy by failing to notify Allianz of Mr Jackson's claim as soon as practicable and by failing to forward the proceedings before the bedside hearing." "Whether the conduct of BlueScope's solicitors and counsel at the bedside hearing, including joint representation of BlueScope and BHP, caused irretrievable or other prejudice to Allianz." 'Whether Allianz was entitled to refuse to take over the proceedings and refuse indemnity.' "Whether BlueScope was entitled to act as a prudent uninsured and settle Mr Jackson's claim after Allianz refused indemnity." 'Whether any failure by BlueScope to comply with policy conditions should be excused under s 18 of the Insurance Act 1902 because Allianz was not prejudiced.']

Ratio Decidendi

BlueScope and its solicitor had actual knowledge before the bedside hearing that Allianz insured BlueScope for relevant pre-30 September 1979 workers compensation liability, and BlueScope breached condition 2 by failing to notify Allianz before that hearing. However, Allianz suffered no irretrievable or substantive prejudice from the late notification or from the joint representation of BlueScope and BHP. Counsel at the bedside hearing did not deliberately refrain from asking questions to favour BHP, and the plaintiff's poor health, inconsistent evidence and the Browne v Dunn undertaking meant Allianz did not lose a real forensic opportunity. Allianz could rely only on late notification,...

Court Disposition

Verdict for the cross-claimant for the amounts claimed and interest.

Orders

  • ['Verdict for the cross-claimant for the amounts claimed and interest.' 'The cross-claimant is to bring in short minutes of order reflecting the decision.' 'The matter is listed for directions before Judge MJ Finnane QC on Thursday 21 March 2013 at 10am.']