Bradford Insulation (SA) Pty Ltd (in Liquidation) v CGU Insurance Ltd [2004] NSWDDT 45

Bradford Insulation (SA) Pty Ltd (in Liquidation) v CGU Insurance Ltd [2004] NSWDDT 45

The policy responded because Mr Cutajar sustained personal injury by accident during the period of cover when asbestos fibres lodged in his lung, and the policy did not require Bradfords' legal liability to arise during the period of cover. CGU was therefore liable to indemnify Bradfords up to the policy limit and was also liable for costs and expenses incurred in connection with the plaintiff's claim. If the policy had not responded, election and waiver would not have made CGU liable, but CGU's conduct induced Bradfords to cede control of the litigation and caused a real loss of opportunity to save costs.

Jurisdiction
Australia
Judgment Date
25 November 2004
Procedural Posture
Cross Claim for Indemnity Under Workers Compensation Insurance Policy / Judgment After Hearing
Outcome
Judgment for Bradfords against CGU.
Legal Topics
['policy Construction' 'indemnity' 'personal Injury by Accident' 'election' 'waiver' 'estoppel' 'asbestos Related Injury']
['insurance Law' 'workers Compensation' 'estoppel'] ['policy Construction' 'indemnity' 'personal Injury by Accident' 'election' 'waiver' 'estoppel' 'asbestos Related Injury']

Case Brief

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Procedural Posture

Cross Claim for Indemnity Under Workers Compensation Insurance Policy / Judgment After Hearing

Legal Issues

  1. 1 ["Whether the insurance policy responded to Bradfords' liability to pay damages and costs to Mr Cutajar." 'Whether Mr Cutajar sustained personal injury within the meaning of the policy during the period of cover.' 'Whether the injury was personal injury by accident.' 'Whether the policy only indemnified legal liability arising during the period of cover.' 'If the policy did not respond, whether CGU was nevertheless liable by election or waiver.' 'If the policy did not respond, whether CGU was estopped from denying that the policy responded.']

Ratio Decidendi

The policy responded because Mr Cutajar sustained personal injury by accident during the period of cover when asbestos fibres lodged in his lung, and the policy did not require Bradfords' legal liability to arise during the period of cover. CGU was therefore liable to indemnify Bradfords up to the policy limit and was also liable for costs and expenses incurred in connection with the plaintiff's claim. If the policy had not responded, election and waiver would not have made CGU liable, but CGU's conduct induced Bradfords to cede control of the litigation and caused a real loss of opportunity to save costs.

Court Disposition

Judgment for Bradfords against CGU.

Orders

  • ['Judgment for Bradfords against CGU in the sum of $246,530 plus interest in the sum of $12,234.00.' "CGU is to pay Bradfords' costs of the cross claim on an indemnity basis."]