Webb v Estate of Darryl Arthur Herbert C/- The Public Trustee & Anor

[2006] WASCA 43

Western Australia Court of Appeal

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For Australian Law.

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Interrogate

Catchwords

1. Insurance
2. › Liability insurance
3. › Third party's right of recovery against insurer
4. › Death of insured
5. › Whether third party must first obtain judgment establishing insured's liability
6. › Meaning of 'is liable in damages'
7. › Insurance Contracts Act 1984 (Cth), s 51(1)
1. Practice and Procedure
2. › Summary judgment
3. › Appeal against summary judgment
4. › Whether real question to be tried
5. › Complex question of statutory construction with limited and conflicting authority
6. › Rules of the Supreme Court 1971 (WA), O 16
1. Insurance
2. › Liability insurance
3. › Construction of policy
4. › Whether indemnity conditional on court judgment against insured
5. › Whether policy terms proved by evidence
6. › Insurance Contracts Act 1984 (Cth), s 54(1)

Quick Take

It is arguable that 'is liable in damages' in s 51(1)(a) of the Insurance Contracts Act 1984 (Cth) refers to a liability arising at the time of the negligent act causing damage, rather than requiring a liability crystallised by court judgment, arbitral award or agreement. The earlier WASCA decision in Bayswater Car Rental v Hannell may be distinguishable where the policy does not expressly require indemnity only 'on a court judgment'. Summary judgment should not be granted on assumed rather than proved policy terms where the statutory question is complex and authority is conflicting.