Vero Insurance Limited v Power Technologies Pty Ltd [2007] NSWCA 226

Vero Insurance Limited v Power Technologies Pty Ltd [2007] NSWCA 226

It was not shown that the respondent had actual knowledge of the danger of asbestos or that it deliberately courted danger, and the clause did not operate on mere negligence or lack of awareness. The exclusion for professional duties did not apply, as the duty was not owed to Mr Barlow in a professional capacity. Injury occurred for policy purposes at initial inhalation of asbestos, so the earliest policy period responded. However, the trial judge failed to address whether the respondent had satisfied its obligation to ensure only competent employees were employed under Condition 4, requiring remittal of that question.

Parties
Appellant: Vero Insurance Limited; Respondent: Power Technologies Pty Ltd
Jurisdiction
Australia
Judgment Date
29 August 2007
Procedural Posture
Appeal / Court of Appeal Determination on Appeal Against Dust Diseases Tribunal Judgment
Outcome
Appeal allowed in part. Previous judgment and orders set aside. Matter remitted for redetermination of the competent employees issue. Each party to pay its own costs of the appeal. Costs of the original hearing to abide the outcome of the remitted issue.
Legal Topics
Public Liability Insurance, Policy Exclusion Clauses, Onus of Proof—compliance With Policy Conditions, Duty to Employ Competent Employees, Bodily Injury—time of Occurrence, Professional Duty Exclusions, Issue Estoppel and Res Judicata, Contribution Proceedings, Mesothelioma From Asbestos Exposure
Insurance Law Tort Law Civil Procedure Public Liability Insurance Policy Exclusion Clauses Onus of Proof—compliance With Policy Conditions Duty to Employ Competent Employees Bodily Injury—time of Occurrence +4 more

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Parties

Vero Insurance Limited

Appellant

Power Technologies Pty Ltd

Respondent

Procedural Posture

Appeal / Court of Appeal Determination on Appeal Against Dust Diseases Tribunal Judgment

Legal Issues

  1. 1 Whether the respondent complied with Condition 4 of the policy (exercising reasonable care that only competent employees are employed and taking reasonable precautions to prevent bodily injury)
  2. 2 Whether the claim fell within the professional duty exclusion of the policy
  3. 3 Whether the injury occurred during the policy period so as to trigger indemnity

Ratio Decidendi

It was not shown that the respondent had actual knowledge of the danger of asbestos or that it deliberately courted danger, and the clause did not operate on mere negligence or lack of awareness. The exclusion for professional duties did not apply, as the duty was not owed to Mr Barlow in a professional capacity. Injury occurred for policy purposes at initial inhalation of asbestos, so the earliest policy period responded. However, the trial judge failed to address whether the respondent had satisfied its obligation to ensure only competent employees were employed under Condition 4, requiring remittal of that question.

Court Disposition

Appeal allowed in part. Previous judgment and orders set aside. Matter remitted for redetermination of the competent employees issue. Each party to pay its own costs of the appeal. Costs of the original hearing to abide the outcome of the remitted issue.

Orders

  • Appeal allowed in part
  • Set aside the judgment and orders made by Curtis J