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

Reported Decision: (2007) 14 ANZ Insurance Cases 61-745 Appeal Outcome: Special leave application refused with costs by the High Court - 7 March 2008

New South Wales Court of Appeal

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

HEARING DATE(S): 22 February 2007

JUDGMENT DATE: 29 August 2007

JUDGMENT OF: Beazley JA at 1; Campbell JA at 192; Harrison J at 193

DECISION: 1. Appeal allowed in part; 2. Set aside the judgment and orders made by Curtis J; 3. Order that the matter be remitted to the Dust Diseases Tribunal of New South Wales for determination of the question whether the respondent had complied with its obligation under Condition 4 of the Policy of Insurance to "exercise reasonable care that only competent employees are employed"; 4. Order that each party pay its own costs of the appeal; 5. Costs of the hearing before Curtis J to abide the decision of the trial judge on the remitted hearing.

CATCHWORDS: APPEAL – former adjudication of matters – contribution proceedings followed by indemnity proceedings – whether trial judge should have found insured had actual knowledge of dangers of asbestos in subsequent proceedings given prior findings on knowledge - INSURANCE – use of findings of fact from previous decision – whether trial judge used findings of fact without parties being given opportunity to consider and respond to material – if trial judge did use previous findings of fact, whether there was evidence in this case that supported that fact finding - INSURANCE – public liability insurance policy – Condition of policy that insured take all reasonable precautions to prevent bodily injury – onus of proof on insured to prove compliance with Condition – whether insured had actual knowledge of the risk of exposure to asbestos - INSURANCE – public liability insurance policy - Condition of policy that insured take all reasonable precautions to prevent bodily injury – onus on insured to prove they had not deliberately courted a risk – whether there was evidence that insured complied with standard industry practice – whether trial judge erred by having found that insured complied with standard industry practice, that constituted prima-facie evidence that a tortfeasor had not deliberately courted a risk - INSURANCE – public liability insurance policy – Condition of policy that insured exercise reasonable care that only competent employees are employed – whether trial judge failed to deal with whether insured satisfied its onus of proving it had only employed competent employees - INSURANCE – public liability insurance policy – policy excluded claims arising out of a breach of the duty owed in a professional capacity by the insured – whether insured owed a professional duty to worker suffering damage - INSURANCE – public liability insurance policy – policy responded in respect of bodily injury occurring during period of insurance – inhalation of asbestos fibres resulting in mesothelioma – time at which injury occurred – injury occurred at time of initial inhalation and penetration of asbestos - INSURANCE – public liability insurance policy – liability of insured covered by policy in respect of which it became liable to pay compensation - injury to worker during terms of different policies – liability of insured arose only once at time of initial exposure