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‘Accidental Damage’ – Matton Developments v CGU Insurance Limited (No 2)
Anti-discrimination and equal opportunity Capital raising and financing Company and securities law Compensation Law Competition and consumer law Dispute resolution Employment Energy and resources Family and relationship law. It also argued that section 13 gave rise to a statutory duty, the breach of which also gave rise to an entitlement to damages.
No responsibility for the loss occasioned to any person acting on or refraining from action as a result of any material published can be accepted. Based on this, the Court concluded that the refusal of cover by CGU did not constitute any breach of its duty of utmost good faith.
The cause of the damage to a large Telescopic Crawler Crane Crane was in dispute, in particular, whether the damage was “accidental, sudden and unforeseen”. It is one of the first decisions to consider the impact of the amendments to the Act made by the Insurance Contracts Amendment Act Cth.
cgi Nevertheless, they do provide useful guidance on how a court may interpret their impact on any alleged breaches of duty under policies to which they do apply. All information on this site is of a general nature only and is not intended to be relied upon as, nor to be a substitute for, accidentxl legal professional advice.
This was considered the most logical explanation particularly in light of photographs taken after the incident which suggested that the Crane had been operated on a slope.
The decision is also useful for its comprehensive review of the Australian law relating to the duty of utmost good faith.
The decision is one of the first reported cases to consider the amendments to the Insurance Contracts Act Cth. This decision confirms that damage which occurs as a result of a known risk is, depending on the terms of the relevant policy, unlikely to be regarded as accidental damage.
The Court considered it significant that the operator was aware that operating the Crane on a slope would create a ccgu risk of the boom collapsing, and that he proceeded despite this knowledge. The decision demonstrates the importance of forensic and eyewitness evidence in challenges to an insurer’s decision to refuse cover.
It also demonstrates the importance of evidence, including expert, photographic and eye-witness evidence, when making a decision to refuse accdental under a policy.
In the circumstances, the Court held that section 13 does not support the existence of a concurrent liability in tort, either by way of breach of a statutory duty or a tort of bad faith. Matton also submitted that CGU had breached its duty of utmost good faith by relying on conclusions drawn by its own experts, rather than giving due acicdental to the insured’s witnesses who gave evidence that the Crane was being operated on level ground prior to collapse.
The Court accepted that CGU’s decision to decline the claim was made after z consideration of the available evidence, including the lay evidence.
Matton submitted a claim to CGU seeking indemnity for damage to the Crane in February when its boom collapsed while lifting concrete slabs. Since the amendments relating to the duty of utmost good faith only apply to contracts of insurance entered into or renewed after 28 Junethey were not strictly relevant to this dispute and so the Court’s pronouncements on wccidental relevance are strictly non-binding.
‘Accidental damage’ – Matton Developments v CGU » Lander & Rogers
Stay Informed subscribe now. It also considered the recent amendments to the Act, which deem a breach of the duty of utmost good faith to be a breach of the Act. It argued that CGU’s failure to indemnify amounted to a breach of this implied term and, as such, CGU was liable for damages for all causally connected loss, including default interest on the finance of the Crane.
The Court undertook a detailed examination of the authorities on section 13 and confirmed that it was enacted to clarify that the duty of utmost good faith applied to both the insured and insurer and that it provided a basis for either party to seek contractual damages for its breach. In this case, the evidence allowed the insurer to successfully defend proceedings alleging not only wrongful declinature, but also allegations that it had breached its duty of utmost good faith.
It held that an insurer was not obliged to accept the statement of the operator or even an insured, since they may be honestly mistaken. Matton relied on the duty of utmost good faith implied by section 13 of the Insurance Contracts Act Cth Act into contracts of insurance.