• Kevin Gibbons

[2015] WASC 258 20 July 2015


Public Liability Cover for Owner Builders

The scope of cover may be surprising to some insurers


The risk exposure for owner builders to personal injury claims resulting from some defect in the building work can be as long as the proverbial length of string.


Accordingly, people who have discharged those duties need to give special consideration about adequate insurance perhaps for as long as they live. Disposal of the property does not end the liability risk.


Background

While attending a party at a friend's home in October 2009, many of those present were surprised when the host's balcony collapsed injuring many of them.


The cause of the collapse was inadequate installation of the balcony when the home was constructed 16 years beforehand. That inattention set in train the risk that the catastrophe may happen well into the future and without intermediate warning.


The original owner builder, Mr Verini, had no special building skills. He subcontracted many of the tasks including the design and construction of the relevant balcony. Unbeknownst to him, its support system was insufficient and the absence of an adequate system constituted a serious failure on the part of the subcontractor. The balcony was left as an accident waiting to happen.


Whether a certifying authority in relation to the building work might also be exposed to risk was not explored in this litigation.


A few years after completion, Verini sold the house to the person who hosted the party.

There were at least 14 victims and all of them commenced litigation against Verini to recover damages for their personal injuries.


Insurance

At the time of the accident, Verini was insured for public liability with WFI Insurance. It was part of his home owner’s insurance package but the home insured was not where the accident occurred.


While the home and contents policy did not relate to the location of the accident, the public liability extension was not confined to the location of the insured property.


But for an exclusion which came to be the subject of the insurance dispute with WFI, it admitted that it had to indemnify Verini if he was liable to the victims and reimburse his defence costs incurred with its consent.


WFI did not raise a contention that the scope of the cover did not extend to Verini's potential liability as builder of the balcony.


WFI contended, however, it could not be liable due to the operation of an exclusion which said:

This policy does not insure you...against any liability...

6. For personal injury...directly or indirectly caused by or arising out of...

A breach of your duty as the owner or occupier of a building or structure we did not insure at the time of this occurrence (the balcony collapse) that covered the personal injury.


An obvious commercial purpose of the broad scope of public liability was to encourage home owners to take out first party insurance for their home and contents.


A narrower scope of public liability cover may well have encouraged potential insureds to insure elsewhere.


In essence, there was no geographical limitation in relation to the operation of the public liability cover.


The Legal Proceedings

Because WFI declined to indemnify, Verini issued a third party notice in the victims' proceedings that WFI indemnify Verini for such liability as he might incur in relation to the victims' proceedings.


The victims' claims were settled on the second day of the trial on terms not to be disclosed.

Given the common law in relation to the liability risk of an owner builder to a person injured due to some building defect, we assume that the settlement was for a substantial sum notwithstanding the considerable lapse of time between the time of construction and the date of the accident.


As a matter of limitation law, the limitation period for Verini’s liability to the victims only commenced to run from the date of the accident. If Verini was pursued by the host, as purchaser for the property damage the commencement of the limitation period and the risk of liability would probably have been different to Verini’s risk to the victims.


WFI unsuccessfully challenged the claim under the policy on the basis that Verini's liability was as owner or occupier in relation to property this cover was excluded because the dwelling where the accident occurred was not the subject of insurance with WFI.


In rejecting WFI's submissions, the judge said:

If Mr Verini has a duty of care to the plaintiffs, it is a duty that arises out of the activity that he undertook in building the house, including the balcony...(and) the duty is independent of whether (he) was at (that) time the owner of the building.


The time for an appeal has not yet expired.


Conclusion

While the case obviously produced an unexpected result for WFI, the case probably has no real elements which are likely to interest an appellate court.


Lessons for Insureds and Brokers

In taking out liability insurance when an insured has previously discharged the responsibilities and obligations of an owner/builder, the policy needs careful scrutiny to ensure:

  1. Where an insured no longer owns a home in respect of which they were the builder that the scope of the liability cover is not solely confined due to the operative clause or an exclusion to a particular location.

  2. Exclusions which might permit an insurer to decline liability in circumstances akin to Verini's case are not ignored.

  3. That if a continuing insurer has altered its renewal terms so as to overcome some of the difficulties which WFI encountered in Verini's case then that is not ignored. Those changes could be manifest in the operative clause, explanatory notes, the content of introductory words in exclusions, the content of particular exclusions, the addition of new exclusions.

Attempts by insurers to alter future policies to take account of Verini's case by way of exclusions may also run into technical difficulties due to the operation of section 54 of the Insurance Contracts Act but the resolution of issues arising under that section may take many years to be revealed.


Since the commencement of the Insurance Contracts Act, the courts have tended to throw their weight against insurers who through form attempt to defeat substance.

  • Kevin Gibbons

[2015] NSWCA 164 (16 June 2015)


Liability Risks for Venue Operators and Risks of Physical Violence


While not identical to a situation of obligations of security guards at a popular venue where alcohol is served and patrons may be affected by drugs, Tilden's case is an example of the liability risks for venue operators and security guards charged with managing risks of physical violence.


Facts

Tilden, a club patron and a member of the darts team, suffered facial injuries after receiving a few clouts from another member of the darts team at the Ettalong Memorial Bowling Club.


The event was on a Sunday evening.


Tilden and his assailant were mature aged patrons.


They had both been at the club for a while, although they were not part of the same group in the old smoking area of the club. They were sitting apart but within earshot.


There was no general indication that either of them ought to be declined alcohol and there was no real advance warning that a physical altercation was about to break out.


The club had bar managers and a designated security officer on duty at the time. All staff were responsible for regularly checking for untoward developments which might have attracted a security interest. They circulated every 30-45 minutes.


The club had no CCTV in the area.


While the club denied that there was any violence or quarrelsomeness between them at the club, the club did admit that Gregg had a history of violence. The evidence did not explore what that was but there was a hint that the club knew Gregg was involved in what was called domestic violence.


As was revealed later, there was some niggling between Tilden and Gregg. Immediately prior to the period of niggling ending, Tilden said some words which caused Gregg to spontaneously enter Tilden's space and strike him so that Tilden's head hit a nearby brick wall.


Tilden gave evidence that he said words to Gregg to the effect:

You only like to hit disabled people and women.


The configuration of the club was that staff needed to enter the old smoking area to see events. The layout of the lounge area, where drinks were served, did not permit staff serving drinks to see into the old smoking area.


The club had in place procedures for monitoring the behaviour of patrons including the allocation of staff with security duties including reporting and removal of quarrelsome patrons.


The verbal niggling was going on for about 20 minutes before the assault. The fact that it was occurring, let alone potentially escalating, would not have been able to be detected by simply observing the patrons in a general way. It also seemed to be uncontested that the escalation to physical violence was very spontaneous.


Tilden had to prove his case. He had to prove that there was either an absence of proper procedure, the presence of which would have prevented the event or carelessness in managing the situation.


The club had some onus to adduce some evidence about its procedure, practice and conduct.


It seems that Tilden assessed his damages around, at least $200,000 due to the impact of his disability on his capacity to work.


The Trial Result

Gregg acceded to default judgment. It was entered against him in the sum of $37,111.

Tilden was not successful against the club but had he been successful, the trial judge assessed damages against the club at $8,227.


The difference in awards was because Gregg’s liability was to be judged at common law whereas the club's liability was to be assessed under the Civil Liability Act which has thresholds for non-economic loss.


While Gregg was ordered to pay Tilden’s costs, he, Tilden, was ordered to pay the Club’s costs.


The judge gave detailed reasons for his conclusions that Tilden failed to prove any fault by the club.


Appeal

Notwithstanding the commercially parlous position which Tilden found himself, he appealed:

(i) on the basis that the damages awarded against Gregg were too low;

(ii) that the finding in favour of the club ought to be reversed and the damages increased.


The Court of Appeal was unanimous in dismissing the appeal.


The reasons of the Court were delivered by Meagher JA.


In order to succeed on the appeal in relation to liability, Tilden had to prove that the judge had made a legal error in arriving at the liability conclusions he determined. Proving fault in that way on the part of the judge is always difficult when a trial judge has expressed detailed reasons and the reasons are able to be sustained on the evidence or the inferences the judge has made are also sustainable.


Tilden's primary case on liability was that the club should have paid special attention to Gregg’s propensity for violent behaviour, albeit not at the club or to have been in relation to club patrons or members.


The trial judge refused to consider that to be negligent, and Meagher JA found no error in that.


Tilden complained that the judge's conclusion that it was not practical or feasible to have more security or more staff circulation was legally wrong.


Meagher JA disagreed with that contention, too.


Meagher JA also disagreed with Tilden's contention that the judge erred in finding that staff ought to have kept a particular eye on Gregg.


In respect of having no CCTV covering the location, the trial judge found (and Meagher JA agreed) that its presence would not have prevented the event because that which ignited the assault was not actions but words which of course would not have been detected on CCTV.


At the trial, Tilden contended that damages ought to have been in the order of $165,000.


The reason that the judge determined damages as he did was because he did not believe the claimant's evidence vital to a handsome award. Meagher JA did not consider the judge made any error in that approach.


Lessons

There can be no doubt that the club's defence was substantially assisted because it had reasonable records, could give direct evidence of a reasonable system and could produce its staff on the night in question.


The combination of those factual matters placed Tilden at greater jeopardy than he or his advisers might have otherwise expected even in these notoriously difficult cases where violence is spontaneous between patrons who are not so affected by alcohol so as to be denied drinks or ought to be removed from the premises.


The case and its result is instructive for all similar cases where factual content is forensically so important.


The capacity of the club to marshal all of the relevant witnesses and to have them present their evidence in practical cogent form is a relatively luxurious position.


One wonders if Tilden and his team were expecting the club to crumble or settle on reasonable commercial terms.


As the case indicates, insurers can be occasionally obdurate and when the evidentiary planets align, obduracy pays off.


However, what the case does demonstrate also is that when the evidence before the trial judge is broad and encompassing, it is exceedingly difficult to get an appeal court to, in effect, impose their own will on the same facts when to do so would be contrary to appellate processes.