Tasker v Munro [2020] NSWSC 1674

Tasker v Munro [2020] NSWSC 1674

Leave was refused because Mr Tasker had no arguable claim against Mr Munro where the pleaded negligence case was, in substance, a failure to warn of the obvious risk of diving into water of unknown depth. In any event, the NRMA policy did not respond because the incident occurred on the river rather than at the insured home or site, and its watercraft exclusion applied. As to Liberty, although the Court did not finally determine whether the policy responded to an occurrence connected with the insured business, the exclusion for liability connected with ownership, operation, possession or use of watercraft exceeding 10 metres in length clearly applied.

Jurisdiction
Australia
Judgment Date
24 November 2020
Procedural Posture
Application for Leave to Proceed Against Insurers Under S 5(3) of the Civil Liability (third Party Claims Against Insurers) Act 2017 (nsw) / Amended Notice of Motion Filed 21 July 2020 to Join Proposed Second and Third Defendants
Outcome
Leave refused; notice of motion dismissed with costs.
Legal Topics
['third Party Claims Against Insurers' 'leave to Proceed Against Insurer' 'obvious Risk' 'duty to Warn' 'policy Exclusions' 'watercraft Exclusion']
['civil Procedure' 'insurance' 'negligence'] ['third Party Claims Against Insurers' 'leave to Proceed Against Insurer' 'obvious Risk' 'duty to Warn' 'policy Exclusions' 'watercraft Exclusion']

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Procedural Posture

Application for Leave to Proceed Against Insurers Under S 5(3) of the Civil Liability (third Party Claims Against Insurers) Act 2017 (nsw) / Amended Notice of Motion Filed 21 July 2020 to Join Proposed Second and Third Defendants

Legal Issues

  1. 1 ['Whether leave should be granted to proceed against NRMA as proposed second defendant under the Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW).' "Whether the NRMA home insurance policy arguably responded to the plaintiff's claim where the injury occurred on the Nambucca River rather than at the insured home or site." 'Whether the NRMA policy exclusion for liability arising from using or owning a watercraft applied to the houseboat.' "Whether the plaintiff's negligence claim was unarguable because it alleged a failure to warn of an obvious risk." 'Whether leave should be granted to proceed against Liberty as proposed third defendant.' 'Whether the Liberty business policy arguably responded to an occurrence connected with the insured business of Sand Extraction – Sales/Distribution.' 'Whether the Liberty policy exclusion for liability connected with watercraft exceeding 10 metres in length applied.']

Ratio Decidendi

Leave was refused because Mr Tasker had no arguable claim against Mr Munro where the pleaded negligence case was, in substance, a failure to warn of the obvious risk of diving into water of unknown depth. In any event, the NRMA policy did not respond because the incident occurred on the river rather than at the insured home or site, and its watercraft exclusion applied. As to Liberty, although the Court did not finally determine whether the policy responded to an occurrence connected with the insured business, the exclusion for liability connected with ownership, operation, possession or use of watercraft exceeding 10 metres in length clearly applied.

Court Disposition

Leave refused; notice of motion dismissed with costs.

Orders

  • ['Refuse leave to proceed against the proposed second defendant.' 'Refuse leave to proceed against the proposed third defendant.' 'Dismiss notice of motion filed 21 July 2020 with costs.']