Barrie Toepfer Earthmoving and Land Management Pty Ltd v CGU Insurance Ltd [2016] NSWCA 67

Barrie Toepfer Earthmoving and Land Management Pty Ltd v CGU Insurance Ltd [2016] NSWCA 67

The insurers bore the onus of proving breach of condition 3 and causation because the policy otherwise responded to Earthmoving's liability and the condition operated to permit refusal or reduction of a claim. The insurers did not establish that Mr Luck actually recognised a real risk that the load would strike the bridge and deliberately courted that danger, or that he failed to take steps he considered reasonable after hearing the initial noises. Condition 3, headed 'Reasonable Care', did not impose an absolute obligation to comply with statutory obligations; the obligation was qualified by reasonable care and precautions. Accordingly the insurers were not entitled to deny indemnity...

Jurisdiction
Australia
Judgment Date
07 April 2016
Procedural Posture
Appeal Concerning an Insurance Indemnity Cross Claim Under a Commercial Motor Vehicle Policy / Appeal From the Supreme Court of New South Wales, Common Law, [2014] NSWSC 1188, Price J, 28 August 2014
Outcome
Appeal allowed; judgment entered for the cross-claimant/appellant on the amended cross-claim.
Legal Topics
['commercial Motor Vehicle Insurance' 'recklessness Exclusion' 'reasonable Care Condition' 'onus of Proof' 'statutory Obligations and Road Rules' 'third Party Liability Indemnity']
['insurance Law' 'contract Law' 'civil Procedure'] ['commercial Motor Vehicle Insurance' 'recklessness Exclusion' 'reasonable Care Condition' 'onus of Proof' 'statutory Obligations and Road Rules' 'third Party Liability Indemnity']

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Procedural Posture

Appeal Concerning an Insurance Indemnity Cross Claim Under a Commercial Motor Vehicle Policy / Appeal From the Supreme Court of New South Wales, Common Law, [2014] NSWSC 1188, Price J, 28 August 2014

Legal Issues

  1. 1 ['Whether the insured or the insurers bore the onus of proving compliance or non-compliance with condition 3 of the policy.' 'Whether Mr Luck was reckless within exclusion 7(i) and in breach of the obligation to exercise reasonable care and precautions in condition 3.' 'Whether condition 3 imposed an absolute obligation to comply with the relevant statutory obligations.' 'Whether exclusion 7(i) and condition 3 applied to Mr Luck and his conduct as an employee driver.' 'Whether Mr Luck was reckless by continuing to drive across the bridge after the load first struck it.']

Ratio Decidendi

The insurers bore the onus of proving breach of condition 3 and causation because the policy otherwise responded to Earthmoving's liability and the condition operated to permit refusal or reduction of a claim. The insurers did not establish that Mr Luck actually recognised a real risk that the load would strike the bridge and deliberately courted that danger, or that he failed to take steps he considered reasonable after hearing the initial noises. Condition 3, headed 'Reasonable Care', did not impose an absolute obligation to comply with statutory obligations; the obligation was qualified by reasonable care and precautions. Accordingly the insurers were not entitled to deny indemnity...

Court Disposition

Appeal allowed; judgment entered for the cross-claimant/appellant on the amended cross-claim.

Orders

  • ['Appeal allowed.' 'Set aside order 2 made on 28 August 2014.' 'Judgment for the cross-claimant/appellant (Barrie Toepfer Earthmoving and Land Management Pty Ltd) against the cross-defendants/respondents (CGU Insurance Limited, Vero Insurance Limited and NTI Limited) on the amended cross-claim.' "The respondents pay...