HIH WINTERTHUR WORKERS COMPENSATION (NSW) PTY LTD v THIESS CONTRACTORS PTY LTD and ANOR [1998] NSWCA 105

HIH WINTERTHUR WORKERS COMPENSATION (NSW) PTY LTD v THIESS CONTRACTORS PTY LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

HANDLEY and SHELLER JJA and FITZGERALD AJA 6 August 1998, 6 August 1998 [1998] NSWCA 105

INSURANCE policy — liability of insurer for worker's compensation claim — whether common law liability covered by policy.

Fitzgerald AJA Mr John Frederick Hendry was injured while driving an excavator in the course of his employment by Tuggeranong Operator Hire Pty Ltd. Tuggeranong had hired the excavator and the services of Mr Hendry to Thiess Contractors Pty Ltd which was carrying out work in connection with the Yass bypass.

At the time when he was injured Mr Hendry was acting under the direction of an employee of Thiess. Mr Hendry sued Thiess for common law damages in respect of his injuries. It is immaterial for present purposes whether the amount of such damages was required to be assessed in accordance with Pt5S of the Workers Compensation Act 1987 "Common Law Remedies".! Liability was admitted by Thiess and the amount of Mr Hendry's damages was agreed.

The trial judge found that the appellant, HIH Winterthur Workers Compensation (NSW) Pty Ltd, was obliged to indemnify Thiess against its liability to Mr Hendry under a policy of insurance and that Sun Alliance and London PLC and a number of associated insurers were not liable to provide Thiess with such an indemnity under another insurance policy. By its appeal HIH Winterthur seeks a determination that it is Sun Alliance and its associates, not HIH Winterthur, which is obliged to indemnify Thiess. It is common ground that Sun Alliance and its associates must indemnify Thiess if HIH Winterthur is not obliged to do so.

The policy of insurance which Thiess held from HIH Winterthur was in Form 7 of Schedule 1 of the Workers Compensation (General) Regulations 1987 as amended. In that policy, Thiess was described as the "Employer" in accordance with the second preamble, and HIH Winterthur was described as the "Insurer". The policy provided that if, during the period to which it related, Thiess became "liable to pay compensation under the Act to or in respect of any person who is or who is deemed by the Act to be a worker of the Employer, (including any person to whom the Employer is liable by force of s20 of the Act to pay compensation) or... to pay any other amount in respect of the Employer's liability independently of the Act (being a liability under a law of New South Wales) for any injury to such person...", HIH Winterthur would indemnify Thiess, " against all such sums for which the Employer shall be so liable...".