Commonwealth Steel Company Ltd v Certain Underwriters At Lloyds Comprising Syndicate Nos 130, 144, 208, 210, 214, 235, 250, 404, 469, 490, 677 and 870 [2010] NSWCA 31

New South Wales Court of Appeal

CITATION: Commonwealth Steel Company Ltd v Certain Underwriters At Lloyds Comprising Syndicate Nos 130, 144, 208, 210, 214, 235, 250, 404, 469, 490, 677 and 870 [2010] NSWCA 31

HEARING DATE(S): 17 February 2010

JUDGMENT DATE: 12 March 2010

JUDGMENT OF: Allsop P at 1; Beazley JA at 1; Giles JA at 1

1. The questions referred to the Court of Appeal under Uniform Civil Procedure Rule 1.21 (1)(a): DECISION: Whether, upon the true construction of Excess Common Law Policies No. SB67/11788-4244 and No. SB67/11789-4253 in respect of the period of risk from 31 March 1967 to 31 March 1968 ("the 1967-68 policies") and in the events which have happened, the plaintiff is entitled to indemnity for the loss occasioned to it by reason of its liability to Christopher William Kozaczynski (Deceased) in the sum of FIVE HUNDRED AND TWENTY FIVE THOUSAND DOLLARS ($525,000.00) pursuant to the judgment in that sum in proceedings in the Dust Diseases Tribunal of New South Wales No. 159 of 2000 dated 13 November 2000 ("the loss") or any part thereof under the 1967-68 policies (as the plaintiff contends) or whether the only policies under which the plaintiff is entitled to indemnity for the loss are those subsisting in any one of the policy years prior to the 1967/68 policy year. be answered: "yes, the plaintiff is entitled to indemnity under the 1967-1968 policies; and no, the plaintiff is not limited to earlier policies." 2. Stand the proceeding over to a date to be fixed for the making of further orders.

CATCHWORDS: INSURANCE – Excess common law policies – Policies responded in respect of personal injury occurring during period of insurance – Whether more than one policy can respond to a particular risk – Construction of insuring clause – Inhalation of asbestos fibres resulting in mesothelioma