Thursday, September 15, 2022
HomeInsurance LawDeclare in opposition to dealer for pool harm fails on causation

Declare in opposition to dealer for pool harm fails on causation

By Mark Darwin and Laurence Terret

A policyholder declare for negligence in opposition to its insurance coverage dealer has failed on the problem of causation regardless that it proved the dealer had been negligent.[1]  The choice in Flanagan v Bernasconi[2]  is a vital reminder that to achieve actions for skilled negligence, it’s not adequate to easily show a breach of the dealer’s obligation. The policyholder should additionally show that, had the dealer fulfilled its obligation, it will not have suffered the loss. Normally (because it was on this case) which means proving that an alternate coverage was accessible and at a premium the policyholder would have been ready to pay, that the phrases of that different coverage would have lined the declare and the quantity that the policyholder would have obtained underneath the phrases of the choice coverage.


The plaintiff owned a property which included a 25-metre swimming pool and surrounding pool enclosure. In 2013, the pool (which was empty) and enclosure have been broken when the pool lifted out of the bottom throughout a heavy rain occasion. The harm was not lined by the plaintiff’s owners’ insurance coverage coverage with Vero, which contained a pool exclusion. The plaintiff issued proceedings in opposition to the defendant, her insurance coverage dealer, who had organized the coverage containing the pool exclusion.


The obligation owed by insurance coverage brokers to their purchasers was widespread floor between the events and the judgment comprises a helpful abstract of these duties, which have been summarised in Horsell Worldwide[3]. These duties embody:

  • to train all cheap care and ability, each in advising the consumer and in acquiring acceptable insurance coverage cowl;
  • if what’s required can’t be obtained, to report in what respects the duvet has failed and search different directions;
  • to attract to the consumer’s consideration any uncommon or onerous phrases and clarify their nature and impact; and
  • within the case of ambiguous directions, to make clear the directions and draw consideration to the results of them. Whereas the dealer’s obligation doesn’t embody expounding the regulation, it does prolong to mentioning authorized pitfalls.


On the details of the case, it was widespread floor that the defendant didn’t advise the plaintiff of the existence and impact of the pool exclusion, or that different insurers had provided cowl which didn’t comprise the exclusion. After the defendant was cross-examined, the defence conceded that the obligation owed to the plaintiff had been breached.

In an attention-grabbing apart, the defendant led affidavit proof from different purchasers on his traditional course of conduct in offering providers, the admissibility of which was in concern on the premise that such proof didn’t have “vital probative worth”. The Court docket held that these affidavits established related similarities between the kind of providers the defendant supplied to the plaintiff and the way he went about offering them to different purchasers. Due to this fact, the proof was admissible, having vital probative worth given what was in concern, however on condition that the defendant conceded breach, this proof was finally not determinative.


However the defendant accepted that it breached its obligation, the plaintiff however failed on causation. In contemplating the query of causation, the Court docket utilized the reasoning of the Excessive Court docket that whether or not “one occasion prompted or resulted from one other is set in authorized proceedings by making use of widespread sense standards and never philosophical or scientific theories of causation”.[4]

On the details, the Court docket was happy that on the stability of chances, the plaintiff would have taken out insurance coverage cowl which didn’t comprise the pool exclusion, doubtless a coverage provided by CGU. To this point so good for the plaintiff.

Nonetheless, that was not the top of the causation query – she additionally needed to set up that she would have truly been lined underneath the phrases of the choice coverage akin to that which CGU provided.

The defence argued that provisions within the different coverage – particularly the “defects” and “cheap precautions” provisions – would have meant that the declare wouldn’t have been lined underneath the choice coverage. On this regard, the defence put ahead the opinion of an professional who thought-about that legal responsibility for such a declare can be declined. The Court docket rejected that proof, holding that whether or not a coverage supplies cowl particularly circumstances doesn’t rely on professional proof of what an insurer would have executed, or the Court docket guessing or forming its personal view about how the insurer would behave. Moderately, it is determined by the right development of the coverage and its operation in these circumstances. Finally, primarily based on the appliance of the details to the development of the choice coverage, the Court docket discovered that each the defects and cheap precautions provisions would have defeated a hypothetical declare made underneath the choice coverage.


Though the plaintiff failed on the causation hurdle, the Court docket however went on to contemplate whether or not the damages claimed might be established. The Court docket confirmed that the measure of damages is the distinction between the place the plaintiff was truly in and the place that she would have been within the counterfactual that had the complained conduct not occurred[5] The burden was on the plaintiff to show the harm with as a lot precision as the subject material fairly permitted.

The Court docket discovered that, primarily based on the reinstatement clause within the different coverage, your complete price of rebuilding wouldn’t have been lined, because the harm to the pool didn’t necessitate the demolition of your complete enclosure (however that is what truly occurred). The Court docket additionally famous that the enclosure had not been inbuilt accordance with constructing specs and requirements, so the prices required for compliance with these requirements wouldn’t have been lined. The Court docket concluded that, “at most”, the phrases of the coverage meant that insurer would have paid solely a part of the price of repairing the broken pool and faulty enclosure.

The Court docket additionally discovered that sure heads of damages have been too distant, together with the price of elimination of the particles left within the pool because of the plaintiff’s option to demolish the enclosure, and the authorized prices incurred in pursuing a problem to the insurer’s refusal of the declare to the Monetary Ombudsman Service. Within the latter case, though that declare wouldn’t have been pursued had the plaintiff held the choice coverage, the pursuit of this problem was not fairly foreseeable, given the character of the exclusion.

Key takeaways

Claims in opposition to insurance coverage brokers (or any skilled for that matter) require all parts of the declare to be happy with the intention to succeed. It isn’t sufficient to only show negligence – the plaintiff should show the negligence prompted loss by demonstrating how issues would have been totally different if correctly suggested.

In respect of damages, the phrases of the choice coverage needs to be thought-about fastidiously to determine so far as potential the quantum of a hypothetical profitable declare, by way of what would have been recoverable underneath the choice coverage. There’s a distinction between losses suffered because of an incident and the losses that may be recovered from a negligent dealer.

[1] Flanagan v Bernasconi [2022] NSWSC 381

[2] [2022] NSWSC 381

[3] [2013] NSWCA 368; 18 ANZ Insurance coverage Circumstances 61-991

[4] Unity Insurance coverage Brokers Pty Ltd v Rocco Pezzano Pty Ltd (1998) 192 CLR 603; [1998] HCA 38

[5] Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20 at 643.

Key contacts

Mark Darwin

Laurence Terret



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