Walsh v Yang & Ors [2023] NSWDC 307

Walsh v Yang & Ors [2023] NSWDC 307

The first and second defendants, with actual notice of slipperiness, breached their duty by failing to take simple, inexpensive precautions after the November 2018 incident, and this breach factually and legally caused the plaintiff's injuries. The insurer could not rely on policy exclusions regarding building regulations to decline indemnity because, although the exclusions as written applied, it failed to 'clearly inform' the insured under s 35(2) of the Insurance Contracts Act by only providing the dense and complex policy wording.

Parties
Plaintiff: Colin Walsh; First Defendant / First Cross Claimant: Hongmei Yang; Second Defendant / Second Cross Claimant: Danny Xu; Third Defendant / Cross Defendant: Insurance Australia Limited
Jurisdiction
Australia
Judgment Date
14 August 2023
Procedural Posture
Principal Judgment – Civil – Tort and Insurance / Trial Judgment With Final Orders
Outcome
Judgment for the plaintiff against the defendants; indemnity granted under the insurance policy; costs awarded as set out in orders.
Legal Topics
Negligence, Occupier's Liability, Slip and Fall, Breach of Duty, Causation, Personal Injury Damages, Insurance Policy Construction, Statutory Exclusions, Civil Liability Act, Insurance Contracts Act
Tort Law Insurance Law Negligence Occupier's Liability Slip and Fall Breach of Duty Causation Personal Injury Damages +4 more

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Parties

Colin Walsh

Plaintiff

Hongmei Yang

First Defendant / First Cross Claimant

Danny Xu

Second Defendant / Second Cross Claimant

Insurance Australia Limited

Third Defendant / Cross Defendant

Procedural Posture

Principal Judgment – Civil – Tort and Insurance / Trial Judgment With Final Orders

Legal Issues

  1. 1 Whether the first and second defendants were negligent in failing to address the slip risk of tiles on stairs when wet and liable for the plaintiff's injuries
  2. 2 Whether the insurer (third defendant) was entitled to deny indemnity under the policy due to exclusions relating to business use, unlawful activity, ordinary resident, and building regulation breaches
  3. 3 Whether s 35(1) of the Insurance Contracts Act precluded the insurer from relying on the exclusions, and if the insurer 'clearly informed' the insured under s 35(2)

Ratio Decidendi

The first and second defendants, with actual notice of slipperiness, breached their duty by failing to take simple, inexpensive precautions after the November 2018 incident, and this breach factually and legally caused the plaintiff's injuries. The insurer could not rely on policy exclusions regarding building regulations to decline indemnity because, although the exclusions as written applied, it failed to 'clearly inform' the insured under s 35(2) of the Insurance Contracts Act by only providing the dense and complex policy wording.

Court Disposition

Judgment for the plaintiff against the defendants; indemnity granted under the insurance policy; costs awarded as set out in orders.

Orders

  • Judgment for the plaintiff against the defendants in the sum of $102,508.20.
  • Defendants to pay the plaintiff's costs on an ordinary basis.