ANCHORAGE MARINE UNDERWRITING AGENCY PTY LTD v STANLEY [1996] NSWCA 16

ANCHORAGE MARINE UNDERWRITING AGENCY PTY LTD v STANLEY

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY ACJ, CLARKE and BEAZLEY JJA 18 September 1996, 18 September 1996 [1996] NSWCA 16

INTERPRETATION OF INSTRUMENTS - Insurance contract — Exclusion provision — Express extension of policy schedule to cover water skiing

Beazley JA In this matter the plaintiff, Terrence Schafer, brought proceedings in the District Court of New South Wales against the respondent on the appeal and one other in respect of injuries which he suffered on 4 April 1994 when he was involved in, what I would describe generally as, a boating accident.

The circumstances of the accident may be described briefly. The plaintiff was being towed behind a boat which was owned by the respondent on a device which is known as a ski tube or biscuit. This device comprises a rubber inner tube placed in a deflated condition inside a casing of nylon fabric, which is then inflated. The person using the ski tube or biscuit holds onto handles on the tube and is then towed along behind the boat.

The plaintiff was successful in his action against the respondent and theother defendant. The respondent had a policy of insurance with the appellant in respect of his ski boat and brought a third party action against the appellant claiming indemnity under that policy in respect of any damages which he might be ordered to pay to the plaintiff.

The appellant denied liability. However, the trial judge held that the policy covered the incident in question and thus entered judgment in favour of the respondent against the appellant. The appellant appeals from that determination.

The essence of the appeal was that the insurance policy expressly excluded an activity of the kind in question unless that activity was subject to an endorsement on the policy.