Flanagan v Bernasconi [2023] NSWCA 150

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Flanagan v Bernasconi [2023] NSWCA 150 Hearing dates: 18 October 2022 Date of orders: 4 July 2023 Decision date: 04 July 2023 Before: White JA at [1]; Mitchelmore JA at [2]; Simpson AJA at [76] Decision: (1) The appeal is dismissed. (2) The cross-appeal is dismissed. (3) The appellant/cross-respondent is to pay the cross-appellants/ respondents' costs of the appeal and cross-appeal. Catchwords: NEGLIGENCE – professional negligence – where insurance broker breached duty of care owed to the appellant to exercise reasonable care and skill in advising on and obtaining insurance cover – where appellant took out new policy based on insurance broker's advice which, unlike previous policy, contained certain exclusion clauses – where claim made by appellant in relation to accidental damage to a pool and pool building was denied on the basis of those exclusion clauses – whether insurance policy which appellant would have obtained but for the breach of duty would have responded to a claim for damage to pool and pool building – whether primary judge erred in relation to the onus of proof – whether primary judge erred in finding the appellant would have taken out insurance cover which did not contain the relevant exclusion clauses – whether primary judge erred by failing to find that it had not been proven that an alternative insurer would have covered the appellants' claim Legislation Cited: Motor Accidents Act 1988 (NSW), s 3 Cases Cited: Australian Aviation Underwriting Pty Ltd v Henry (1988) 12 NSWLR 121 Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7 HDI Global Specialty SE v Wonkana No 3 Pty Ltd (2020) 104 NSWLR 634; [2020] NSWCA 296 Fraser v B N Furman (Productions) Ltd [1967] 3 All ER 57 Legal & General Insurance Australia Ltd v Eather (1986) 6 NSWLR 390 Toll (FCGT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165; [2004] HCA 52 Topfelt Pty Ltd v State Bank of New South Wales Ltd (1993) 47 FCR 226 Unity Insurance Brokers Pty Ltd v Rocco Pezzano Pty Ltd (1998) 192 CLR 603; [1998] HCA 38 Vero Insurance Ltd v Power Technologies Pty Ltd [2007] NSWCA 226 Wallaby Grip Ltd v QBE Insurance (Australia) Ltd (2010) 240 CLR 444; [2010] HCA 9 Zurich Australian Insurance Limited v CSR Limited (2001) 52 NSWLR 193; [2001] NSWCA 261 Category: Principal judgment Parties: Sue Flanagan (Appellant/Cross-Respondent) Robert John Bernasconi (First Respondent/First Cross-Appellant) Nadic Insurance Brokers Pty Ltd (Second Respondent/Second Cross-Appellant) Representation: Counsel: J Sleight (Appellant/Cross-Respondent) M Elliott SC (Respondents/Cross-Appellants) Solicitors: Neville Hourn + Borg Legal (Appellant/Cross-Respondent) Hall & Wilcox (Respondents/Cross-Appellants) File Number(s): 2022/00123736 Publication restriction: Nil Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Citation: [2022] NSWSC 381 Date of Decision: 04 April 2022 Before: Schmidt AJ File Number(s): 2019/66093