Flanagan v Bernasconi [2022] NSWSC 381

Flanagan v Bernasconi [2022] NSWSC 381

Although breach of duty on the part of the insurance broker was admitted, the plaintiff's claim fails because her conduct (leaving the pool empty without identifying and repairing a defect or taking reasonable precautions) would have triggered exclusions in any alternative insurance policy offering the desired cover. The court found, on the balance of probabilities, that a claim under such a notional policy would have been rejected on grounds of either a defect in the hydrostatic valve or a failure to take reasonable precautions, thus breaking the chain of causation between the broker's breach and the plaintiff's loss.

Parties
Plaintiff: Sue Flanagan; First Defendant: Robert John Bernasconi; Second Defendant: Nadic Insurance Brokers Pty Ltd t/as Nadic
Jurisdiction
Australia
Judgment Date
04 April 2022
Procedural Posture
Insurance Negligence/damages / Principal Judgment
Outcome
Judgment for the defendants.
Legal Topics
Property Insurance Exclusions, Duty of Care of Insurance Broker, Breach of Broker's Common Law and Statutory Duty, Tendency Evidence Admissibility, Causation and Damages in Insurance Claims
Insurance Law Negligence Evidence Property Insurance Exclusions Duty of Care of Insurance Broker Breach of Broker's Common Law and Statutory Duty Tendency Evidence Admissibility Causation and Damages in Insurance Claims

Case Brief

Summary, issues, holding and outcome

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Parties

Sue Flanagan

Plaintiff

Robert John Bernasconi

First Defendant

Nadic Insurance Brokers Pty Ltd t/as Nadic

Second Defendant

Procedural Posture

Insurance Negligence/damages / Principal Judgment

Legal Issues

  1. 1 Whether the insurance broker failed to advise the plaintiff of the exclusion regarding events involving swimming pools in the Vero policy; whether the broker breached the common law duty of care and statutory duty under the Corporations Act 2001 (Cth); whether the plaintiff would have been able to recover for the loss under a different policy; whether a defect or failure to take reasonable precautions by the insured would have defeated her claim under a notional policy; assessment of damages.

Ratio Decidendi

Although breach of duty on the part of the insurance broker was admitted, the plaintiff's claim fails because her conduct (leaving the pool empty without identifying and repairing a defect or taking reasonable precautions) would have triggered exclusions in any alternative insurance policy offering the desired cover. The court found, on the balance of probabilities, that a claim under such a notional policy would have been rejected on grounds of either a defect in the hydrostatic valve or a failure to take reasonable precautions, thus breaking the chain of causation between the broker's breach and the plaintiff's loss.

Court Disposition

Judgment for the defendants.

Orders

  • Judgment entered for the defendants.
  • The parties are directed to confer and approach in the event that they wish to be heard on costs within 14 days.