MANUFACTURERS' MUTUAL INSURANCE LTD v ST LUKES HOSPITAL [1991] NSWCA 188

MANUFACTURERS' MUTUAL INSURANCE LTD v ST LUKES HOSPITAL

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, CLARKE and HANDLEY JJA 8 August 1991, 14 August 1991 [1991] NSWCA 188

INSURANCE — double insurance common law extension of workers' compensation policy — public liability policy — which policy applies — held: Workers' compensation policy applies declaration to that effect reworded. INSURANCE — double insurance — workers ' compensation cover — public liability cover — worker injured in fall in hospital premises — whether common law extension of workers ' compensation policy applies — if so, public liability cover excluded — held: Workers ' compensation policy applies — new declaration to that effect substituted. WORKERS' COMPENSATION — insurance — indemnity to employer common law extension — scope of indemnity — whether workers' compensation or public liability policy applies to indemnify employer in respect of injury to worker on premises — held: Workers ' compensation policy applies — declaration made. Workers' Compensation Act 1926.

Kirby P I agree with Handley JA. Clarke JA I agree with Handley JA.

Handley JA This appeal from a declaratory order made by Brownie J raises a question as to the proper construction of the compulsory employers indemnity policy prescribed by the regulations under the Workers Compensation Act 1926. On 14 July 1986 Helen Levido who was employed by St. Lukes Hospital and a worker within the meaning of the Act sustained injuries as a result of a fall in premises owned by the hospital. In 1987 she commenced proceedings in the Common Law Division of this Court to recover damages for her injuries. The hospital had in force at the relevant time an employers indemnity policy with the appellant and also a public liability policy with the second respondent. Neither insurer would accept liability under its policy to indemnify the hospital against any judgment in favour of the plaintiff in the common law action. Accordingly the hospital applied by summons in the Commercial Division seeking a declaration as to its entitlement to indemnity under one or other of the policies. The parties agreed, for the purposes of the proceedings, upon certain facts. However paragraph five of the Agreed Statement merely sets out the material allegations in the plaintiffs statement of claim. The relevant cover clause in the employer's indemnity policy provides: "...IF... the Employer shall be liable to pay compensation under the Act to or in respect of any person who is or is deemed by the Act to be a worker of such employer, or to pay an unlimited amount in respect of his liability independently of the Act for any injury to any such person THEN, and in every such case the Insurer will indemnify the Employer..."