Dunning v Dunning [2011] NSWSC 1278

Supreme Court New South Wales

Medium Neutral Citation: Dunning v Dunning [2011] NSWSC 1278 Hearing dates: 29 September, 19 October 2011 Decision date: 11 November 2011 Jurisdiction: Common Law Before: Harrison J Decision: DECLARE that in the events that have happened QBE is not liable to indemnify the first and second defendants in respect of any liability they are, or either of them is, held to have to the plaintiff, pursuant to the insurance contract bearing policy number K044947 between the first and second defendants on the one part and QBE on the other part. Catchwords: SEPARATE QUESTION - insurance - where infant plaintiff sustained injuries at premises of first and second defendants - where plaintiff alleges injuries were caused by their negligence - where first and second defendants were the beneficiaries of QBE insurance policy - question whether policy responds to the events that give rise to the plaintiff's claim - further question whether claim falls within the terms of an exclusion clause if plaintiff "normally lived" with them at time of incident - policy does respond but plaintiff normally living with first and second defendants at time of incident - events giving rise to plaintiff's claim covered by the exclusion clause Legislation Cited: Law Reform (Miscellaneous Provisions) Act 1946 Cases Cited: Clarke v Clarke; Insurance Officer of Australia Ltd (Third Party) [1964] VR 773 Commissioners of Inland Revenue v Maple & Co. (Paris), Limited [1908] AC 22 Gauthiez v Minister for Immigration and Ethnic Affairs (1994) 53 FCR 512 IBM Australia Ltd v National Distribution Services Ltd (1991) 22 NSWLR 466 Oceanic Life Ltd v Chief Commissioner of Stamp Duties [1999] NSWCA 416; (1999) 168 ALR 211 Re Taylor; Ex parte Natwest Australia Bank Ltd (1992) 37 FCR 194 Speno Rail Maintenance Australia Pty Ltd v Hamersley Iron Pty Ltd [2000] WASCA 408; (2000) 23 WAR 291 Category: Separate question Parties: Nathan Bradley Dunning by his tutor Melissa Louise Dunning (Plaintiff) Scott MacKenzie Dunning (First Defendant) Lindsay Saddington (Second Defendant) QBE Insurance (Australia) Limited (Third Defendant) Representation: D Benson (Plaintiff) R Cheney SC with H Chiu (Third Defendant) Slater and Gordon (Plaintiff) Lee & Lyons Lawyers (Third Defendant) File Number(s): 2010/213532