Flanagan v Bernasconi

[2023] NSWCA 150

NSW Court of Appeal

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Interrogate

Catchwords

1. Negligence
2. › Professional negligence
3. › Insurance broker
4. › Breach of duty of care in advising on and obtaining insurance cover
5. › Causation
6. › Whether insurance policy which plaintiff would have obtained but for breach would have responded to claim
7. › Whether plaintiff discharged onus of proving hypothetical policy would have covered claim
1. Insurance
2. › Construction of insurance policy
3. › Exclusion clauses
4. › Defect in an item
5. › Whether hydrostatic valve failure constituted 'defect in an item'
6. › Whether temporal limitation should be implied into exclusion clause
1. Insurance
2. › Construction of insurance policy
3. › Conditions precedent
4. › Reasonable precautions clause
5. › Whether insured failed to take reasonable precautions to prevent claim
6. › Whether insured courted risk with actual recognition of danger

Quick Take

The plaintiff in a negligence claim against an insurance broker bears the onus of establishing that a hypothetical policy would have covered the claim, including that exclusion clauses would not apply — the onus does not shift to the defendant to prove the exclusions would have been triggered.