QBE Insurance Ltd v Moltoni Corporation Pty Ltd

(2000) 22 WAR 148; [2000] WASCA 82

Western Australia Court of Appeal

Built by Barristers,
For Australian Law.

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Interrogate

Catchwords

1. Insurance
2. › Indemnity policy
3. › Employer's liability insurance
4. › Late notification of claim
5. › Prejudice to insurer
6. › Loss of opportunity to investigate and arrange treatment
7. › Whether opportunity had compensable value
8. › Standard of proof for assessing prejudice
9. › Insurance Contracts Act 1984 (Cth), ss 9, 54
1. Insurance
2. › Insurance Contracts Act 1984 (Cth)
3. › Application of Act
4. › Section 9(1)(e) exclusion
5. › Whether employer's indemnity policy entered into for purposes of law relating to workers' compensation
6. › Whether 'a law' refers to statutory law or includes common law
1. Damages
2. › Loss of opportunity
3. › Past hypothetical facts
4. › Standard of proof
5. › Whether value of lost opportunity assessed on balance of probabilities or by reference to degree of possibilities and probabilities
1. Appeal
2. › Duty to give reasons
3. › Sufficiency of reasons
4. › Conflicting medical evidence
5. › Whether trial judge gave sufficient reasons for preferring one body of medical opinion over another

Quick Take

Where an insurer claims prejudice under s 54(1) of the Insurance Contracts Act 1984 (Cth) based on loss of an opportunity to investigate and manage a claim due to late notification, the value of that lost opportunity is to be assessed by reference to the degree of possibilities and probabilities (the Malec/Sellars approach), not on the balance of probabilities. The words 'a law' in s 9(1)(e) refer to statutory law, not the common law, so employer's indemnity policies covering common law liability are not excluded from the Act.