VACC Insurance v BP Australia

(1999) 47 NSWLR 716; [1999] NSWCA 427

NSW Court of Appeal

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Interrogate

Catchwords

1. Estoppel
2. › Approbate and reprobate
3. › Party relying on judgment while disputing findings on which judgment based
4. › Whether party may simultaneously assert legal liability established by judgment and dispute factual findings that increased quantum of that judgment
5. › Insurance — claim against insurer under s 6 Law Reform (Miscellaneous Provisions) Act 1946 (NSW)
1. Estoppel
2. › Issue estoppel
3. › Identity of issues
4. › Whether finding of recklessness for exemplary damages purposes identical to finding of breach of insurance policy condition
5. › Whether findings in contribution proceedings between co-tortfeasors give rise to issue estoppel
1. Estoppel
2. › Issue estoppel
3. › Privity of parties
4. › Whether insurer is privy of insured for purposes of issue estoppel
5. › Whether insured is representative in interest of insurer
1. Estoppel
2. › Anshun estoppel
3. › Scope and nature of principle
4. › Reasonableness of conduct of party against whom estoppel raised
5. › Whether party acted unreasonably in not raising insurer's liability in earlier proceedings

Quick Take

A party who obtains judgment against a co-tortfeasor and then seeks to recover from that co-tortfeasor's insurer under s 6 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) cannot dispute findings of fact made in the original proceedings that increased the quantum of the judgment relied upon, by virtue of the doctrine against approbating and reprobating. The insurer and insured are not privies for issue estoppel purposes, but the doctrine of approbate and reprobate provides an independent basis for preventing inconsistent positions. The question whether s 54 of the Insurance Contracts Act 1984 (Cth) affects the operation of 'reasonable precautions' conditions was left open.