Thompson v NSW Land and Housing Corporation (No 2) [2012] NSWSC 864

Thompson v NSW Land and Housing Corporation (No 2) [2012] NSWSC 864

The first cross claim failed because NSW Land & Housing Corporation had no liability to the plaintiff, no relevant breach of contract or negligent act or omission by Pestkil was established, and cl 25.5 did not apply or was not pleaded. Gerling's reliance on Section C cl 7 failed because the exclusion did not apply on the facts found, the emulsion as used was properly categorised as non-toxic and non-irritant, any escape of ingredients was sudden and accidental, and a literal construction would be contrary to commercial expectations and the policy's purpose. Gerling was therefore liable to indemnify Pestkil for the relevant defence and prosecution costs. Because Pestkil succeeded against...

Jurisdiction
Australia
Judgment Date
02 August 2012
Procedural Posture
Consequential Orders in Personal Injury, Insurance and Costs Cross Claims / On Written Submissions After Judgment for the Defendant in the Principal Proceedings
Outcome
Judgment for Pestkil on the first cross claim; judgment for NSW Land & Housing Corporation on Pestkil's second cross claim against it; judgment for Pestkil against HDI-Gerling on the second cross claim; interest claims deferred.
Legal Topics
['public Liability Insurance Indemnity' 'duty to Defend' 'insurance Exclusion Clause' 'toxic Chemicals and Irritants Exclusion' 'contra Proferentem' 'costs Follow the Event' 'bullock Order' 'interest on Costs']
['common Law' 'personal Injury' 'insurance' 'costs' 'contract'] ['public Liability Insurance Indemnity' 'duty to Defend' 'insurance Exclusion Clause' 'toxic Chemicals and Irritants Exclusion' 'contra Proferentem' 'costs Follow the Event' 'bullock Order' 'interest on Costs']

Case Brief

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Procedural Posture

Consequential Orders in Personal Injury, Insurance and Costs Cross Claims / On Written Submissions After Judgment for the Defendant in the Principal Proceedings

Legal Issues

  1. 1 ['Whether NSW Land & Housing Corporation had a viable first cross claim against Pestkil for indemnity, contribution or damages, including defence costs.' "Whether Section C cl 7 of the Gerling public liability policy excluded Gerling's liability to indemnify Pestkil." "Whether Gerling breached the policy by failing to defend Pestkil at Gerling's expense against the first cross claim." "Whether Pestkil's alternative second cross claim against NSW Land & Housing Corporation should succeed if the claim against Gerling succeeded." 'Whether Pestkil should receive a Bullock or Sanderson order against Gerling for costs payable to NSW Land & Housing Corporation.' 'Whether orders for interest on costs or damages should be made immediately.']

Ratio Decidendi

The first cross claim failed because NSW Land & Housing Corporation had no liability to the plaintiff, no relevant breach of contract or negligent act or omission by Pestkil was established, and cl 25.5 did not apply or was not pleaded. Gerling's reliance on Section C cl 7 failed because the exclusion did not apply on the facts found, the emulsion as used was properly categorised as non-toxic and non-irritant, any escape of ingredients was sudden and accidental, and a literal construction would be contrary to commercial expectations and the policy's purpose. Gerling was therefore liable to indemnify Pestkil for the relevant defence and prosecution costs. Because Pestkil succeeded against...

Court Disposition

Judgment for Pestkil on the first cross claim; judgment for NSW Land & Housing Corporation on Pestkil's second cross claim against it; judgment for Pestkil against HDI-Gerling on the second cross claim; interest claims deferred.

Orders

  • ['Judgment for the cross defendant on the first cross claim.' "The cross claimant to pay the cross defendant's costs of the first cross claim." 'Judgment for the first cross defendant on the second cross claim.' "The cross claimant on the second cross claim to pay the first cross defendant's costs of the second...