Ansell Ltd v CGU Insurance Ltd [2016] NSWSC 1345

Supreme Court New South Wales

Medium Neutral Citation: Ansell Ltd v CGU Insurance Ltd [2016] NSWSC 1345 Hearing dates: 19/09/2016 Date of orders: 27 September 2016 Decision date: 27 September 2016 Jurisdiction: Equity - Commercial List Before: McDougall J Decision: Summons dismissed with costs. Catchwords: INSURANCE – contracts of insurance – where insurer is liable to indemnify insured – whether relevant policy includes a limitation of liability – where there is limited evidence available due to the relevant date of the policy being 1967 – Workers Compensation Act 1926 (NSW) Legislation Cited: Workers Compensation Act 1926 (NSW) Workers Compensation (Amendment) Act 1953 (NSW) Workers Compensation Act 1987 (NSW) Cases Cited: Blatch v Archer (1774) 1 Cowp 63 Jones v Dunkel (1959) 101 CLR 298 (1959) Payne v Parker [1976] 1 NSWLR 191 Wallaby Grip Ltd v QBE Insurance (Australia) Ltd (2010) 240 CLR 444 Category: Principal judgment Parties: Ansell Ltd (Plaintiff) CGU Insurance Ltd (Defendant) Representation: Counsel: T G R Parker SC / D F Villa D J Hooke SC / T Bors

Solicitors: Piper Alderman (Plaintiff) Curwoods Lawyers (Defendant) File Number(s): 2016/32399

Judgment 1. HIS HONOUR: For many years, Commercial Union Assurance Company of Australia Ltd, a predecessor of the defendant (CGU), issued policies of insurance to the plaintiff (Ansell, then known by its former name Dunlop Rubber Australia Ltd). Those policies insured Ansell in respect of its liabilities to its employees under the Workers Compensation Act 1926 (NSW) (the Act), and for its liabilities, independently of the Act, to those employees for injuries. I shall refer to the latter insurance as "the common law extension". In short, the policies were issued to enable Ansell to meet its obligations under s 18 of the Act. 2. For the year of insurance ended 1 July 1967 (which, the parties agree, is the relevant year), the policy was in the form (I shall refer to this form as "the statutory policy") stated in the Appendix to Division 1 of the Regulations made under the Act, as from time to time amended. Thus, among other things, the policy was required to insure Ansell under the common law extension for at least £20,000. 3. It is common ground that the 1967 policy (as I shall call it) responded to a claim made by a worker, pursuant to which the worker recovered damages under a judgment of the Dust Diseases Tribunal of New South Wales (the Tribunal) entered on 11 June 2015. Ansell and CGU are at odds as to whether (as CGU claims) CGU's liability under the common law extension is capped at $100,000. 4. Ansell suggested that if that primary issue were decided against it, there would be a further controversy, relating to CGU's ongoing obligation to prosecute, at its own expense, a cross-claim against another employer, Amaca Pty Ltd (Amaca) said to have contributed to the worker's injury.