Commercial & General Insurance Co Ltd v Government Insurance Office (NSW) [1973] HCA 51

Commercial & General Insurance Co Ltd v Government Insurance Office (NSW) [1973] HCA 51

The mobile crane remained a mobile crane when used in a stationary or "blocked" position because that was one of the ways it was built to be used, so the respondent's third party policy covered the employer's liability. As there was double insurance of the employer's liability, the appellant was entitled to rateable contribution from the respondent, but not a full indemnity. Defence costs were not covered by either policy for contribution purposes, so the respondent's liability was limited to one half of $28,925.20, being $14,462.60.

Jurisdiction
Australia
Procedural Posture
Claim for Contribution Between Two Insurance Companies / Appeal From a Decision of the Supreme Court of New South Wales Dismissing the Claim
Outcome
Appeal allowed with costs.
Legal Topics
['double Insurance' 'contribution Between Co Insurers' 'use of a Motor Vehicle' 'mobile Crane Used in Stationary or Blocked Position' 'defence Costs Under Insurance Policies']
['insurance Law' 'motor Vehicle Third Party Insurance' 'workers Compensation' 'contribution and Subrogation'] ['double Insurance' 'contribution Between Co Insurers' 'use of a Motor Vehicle' 'mobile Crane Used in Stationary or Blocked Position' 'defence Costs Under Insurance Policies']

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Procedural Posture

Claim for Contribution Between Two Insurance Companies / Appeal From a Decision of the Supreme Court of New South Wales Dismissing the Claim

Legal Issues

  1. 1 ['Whether the mobile crane, while stationary in a "blocked" position on a construction site, was being used as a motor vehicle or mobile crane within the meaning of the Motor Vehicles (Third Party Insurance) Act, 1942, as amended NSW and the third party policy.' 'Whether the respondent insurer was liable to indemnify the employer in respect of the accident.' 'Whether the appellant insurer was entitled to a complete indemnity or only rateable contribution from the respondent.' "Whether costs incurred in defending the injured rigger's action were subject to contribution."]

Ratio Decidendi

The mobile crane remained a mobile crane when used in a stationary or "blocked" position because that was one of the ways it was built to be used, so the respondent's third party policy covered the employer's liability. As there was double insurance of the employer's liability, the appellant was entitled to rateable contribution from the respondent, but not a full indemnity. Defence costs were not covered by either policy for contribution purposes, so the respondent's liability was limited to one half of $28,925.20, being $14,462.60.

Court Disposition

Appeal allowed with costs.

Orders

  • ['Order of the Supreme Court of New South Wales set aside.' 'Judgment entered for the plaintiff in the sum of $14,462.60 with costs.']