Allianz Australia Insurance Ltd v Certain Underwriters at Lloyd's of London Subscribing to Policy Number B105809GCOM0430

Court of Appeal (NSW)|2019-09-12|Before: Bathurst CJ, Macfarlan JA, Meagher JA, Rees J, Stevenson J

S Donaldson SC / S Sykes (Appellant) A J Sullivan QC / J G Simpkins (Respondent)

Solicitors: Sparke Helmore Lawyers (Appellant) HBM Lawyers (Respondent) File Number(s): 2019/160119 Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity - Commercial List Citation: [2019] NSWSC 453 Date of Decision: 24 April 2019 Before: Rees J File Number(s): 2018/236236

[This headnote is not to be read as part of the judgment] On 8 September 2009 Mr Thomas Dempsey, a road worker employed by a subcontractor to Baulderstone Hornibrook Pty Ltd ("Baulderstone"), was seriously injured when he was struck by a car in the course of his employment. Baulderstone was insured under two different insurance policies issued by the parties to the proceedings. The first policy was issued by the present appellant ("Allianz") to the Roads and Traffic Authority of New South Wales ("the RTA"). Baulderstone was insured as a contractor of the RTA. This policy ("the Allianz policy") included an "other insurance" provision which converted the cover against loss under the policy into excess insurance in the event that there was other "valid and collectible insurance" (cl 8.20). It additionally provided that the policy would operate as excess insurance if there was "Underlying Insurance" which was a defined term in the Allianz policy (cl 8.17). The second policy was issued by the present respondents, the underwriters at Lloyd's of London ("the Lloyd's Underwriters"), to Bilfinger Berger Australia Pty Ltd ("Bilfinger"), its subsidiaries and related companies. Baulderstone was indemnified under this policy as a subsidiary of Bilfinger. This policy ("the Lloyd's policy") contained an "escape" clause such that it did not cover liability which "forms the subject of insurance by any other policy" (cl 10.5). Section 45(1) of the Insurance Contracts Act 1984 (Cth) did not render the "other insurance" provisions void because Baulderstone had not "entered into" either policy. Mr Dempsey obtained a consent judgment for $1,025,000 in proceedings that he commenced against Baulderstone. Allianz indemnified Baulderstone in respect of that judgment. Allianz then commenced the present proceedings in the Commercial List of the Supreme Court seeking a declaration that the Lloyd's Underwriters were liable to indemnify Baulderstone under the Lloyd's policy and sought equitable contribution from them in respect of the indemnity afforded by Allianz to Baulderstone. On the application of the Lloyd's Underwriters, Stevenson J ordered that the following question be determined separately and in advance of any other question in the proceedings: whether, on the proper construction of both policies, the Lloyd's Underwriters would have been liable to indemnify Baulderstone in respect of the loss arising out of the injury to Mr Dempsey had Allianz not done so. By judgment of 24 April 2019 Rees J determined that a negative answer should be given to that question and that Allianz's proceedings should accordingly be dismissed. Allianz contended on appeal that an affirmative answer should have been given to the separate question. The effect would be that Baulderstone had double insurance in respect of its liability to Mr Dempsey and that Allianz is entitled to equitable contribution from the Lloyd's Underwriters. The Court (Bathurst CJ and Meagher JA, Macfarlan JA dissenting) allowed the appeal: (Per Bathurst CJ and Meagher JA): The effect of cl 10.5 of the Lloyd's policy and cl 8.20 of the Allianz policy is to deny liability under each policy because of the existence of the other. Applying the rule of construction in Weddell v Road Transport and General Insurance Company Ltd, the clauses cancel each other out with the result that both policies respond and Allianz, having met the claim, is entitled to contribution from the Lloyd's Underwriters: [12]; [66]. Lambert Leasing Inc v QBE Insurance (Australia) Ltd (2016) 93 NSWLR 166; [2016] NSWCA 254; Weddell v Road Transport and General Insurance Company Ltd [1932] 2 KB 563, applied. (Per Bathurst CJ and Meagher JA): The Lloyd's policy is not "Underlying Insurance" as defined in the Allianz policy because by virtue of cl 10.5 of the Lloyd's policy the insurance does not provide cover for the risk in question. Clause 8.17 of the Allianz policy therefore has no application in relation to it: [10]; [70]. In re George and the Goldsmiths and General Burglary Insurance Association Ltd [1899] 1 QB 595, referred to. (Per Macfarlan JA, in dissent): There is no double insurance because cl 8.17(c) of the Allianz policy provided indemnity even though (and in fact, because) the Lloyd's policy does not, and the Lloyd's policy does not provide indemnity because the existence of cover under the Allianz policy excludes the Lloyd's Underwriters' liability by reason of the operation of cl 10.5 of the Lloyd's policy: [50].

Judgment

BATHURST CJ: I have had the advantage of reading the judgments of Macfarlan JA and Meagher JA in draft. I agree with Meagher JA that the appeal should be allowed and generally with his reasons. However, because my opinion on the outcome differs from both that of Macfarlan JA and the primary judge, it is desirable for me to shortly set out the reasons for the conclusion which I have reached. For convenience, I will use the same abbreviations as Macfarlan JA.
Both Macfarlan JA and Meagher JA have set out the relevant provisions of the policies and the circumstances giving rise to the dispute between the parties and it is unnecessary to repeat them.
The approach to the question raised in the present case was set out by Payne JA in Lambert Leasing Inc v QBE Insurance (Australia) Ltd (2016) 93 NSWLR 166; [2016] NSWCA 254 at [178], namely, that each policy is to be construed independently and "if each [insurer] would be liable but for the existence of the other [policy], then the exclusions would be treated as cancelling each other out, both insurers are then liable" and "the one who pays can claim contribution from the other": Weddell v Road Transport and General Insurance Company Ltd [1932] 2 KB 563 at 567 ('Weddell').
It is convenient to deal first with the exclusion in cl 10.5 of the Lloyd's policy. In my opinion, the effect of this clause is to exclude liability under the Lloyd's policy, whether direct or by way of contribution, where the liability "forms the subject of insurance by any other policy".
The liability in the present case is the liability for the claim made by Baulderstone for indemnity under the policy, which liability also forms the subject of insurance under the Allianz policy. The fact that liability under the Allianz policy might be excluded or limited by one or more of the provisions of that policy does not mean that the claim does not form "the subject of insurance by any other policy".
It is important in that context to bear in mind that the words used in the Lloyd's policy are "forms the subject of insurance by any other policy" rather than words such as "which is the subject of indemnity under any other policy". The clause looks to the existence of a policy which covers the claim rather than whether the insured can actually obtain indemnity under it.
That construction is also supported by the words "shall not be drawn into contribution with such other insurer" in cl 10.5. The clause is designed to protect Lloyd's from contribution claims. It achieves that object by excluding liability under the policy in circumstances where such potential liability for contribution might otherwise arise.
The Allianz policy deals with the question of double insurance in cl 8.17 and cl 8.20. Clause 8.17 deals with insurance falling within the defined term "Underlying Insurance" while cl 8.20 deals with what is described as "any other valid and collectable insurance".
Each of Macfarlan JA and Meagher JA has set out the definition of "Underlying Insurance". Essentially, it refers to a policy of insurance that provides cover to the insured for a risk, which save for the Underlying Insurance would be covered by the Allianz policy.
In the present case, the Lloyd's policy is not "Underlying Insurance" as defined because by virtue of cl 10.5 the insurance does not provide cover for the risk in question. Thus cl 8.17, in particular cl 8.17(c), has no application.
However, cl 8.20 does not deal with "Underlying Insurance" but "any other valid and collectible insurance". As Meagher JA has pointed out, this is "insurance which has legal force issued by a solvent insurer". Thus the effect of cl 8.20 in the present case is to exclude any liability under the Allianz policy because of the existence of the Lloyd's policy.
In these circumstances, the effect of cl 10.5 of the Lloyd's policy and cl 8.20 of the Allianz policy is to deny liability under each policy because of the existence of the other. Applying the rule of construction in Weddell, the clauses cancel each other out with the result that both policies respond and Allianz, having met the claim, is entitled to contribution from Lloyd's.
In the result, I would make the following orders: 1. Appeal allowed. 2. Set aside the orders made by Rees J on 24 April 2019. 3. Answer the question posed for separate determination by Stevenson J as amended by the parties on 13 September 2019 as follows: "Whether, on the proper construction of: (a) the Construction Risks - Material Damage, Public and Products Liability Annual Insurance Policy, policy number 9900000476CGR & LGR, issued by the plaintiff; and (b) the Public and Products/Contracts Works Liability Policy, policy number B105809GCOM0430, issued by the defendant, the defendant would have been liable to indemnify Baulderstone Hornibrook Pty Ltd in respect of loss arising out of the injury of Thomas Dempsey on 8 September 2009." ANSWER: Yes 1. Order the respondent pay the costs of the appeal and the costs of the separate question in the Court below.
MACFARLAN JA: On 8 September 2009 a road worker employed by a subcontractor to Baulderstone Hornibrook Pty Ltd ("Baulderstone"), Mr Thomas Dempsey, was seriously injured when he was struck by a car in the course of his employment. He obtained a consent judgment for $1,025,000 in proceedings that he commenced against Baulderstone.
At all material times Baulderstone was an "insured" within the meaning of two different insurance policies issued by the parties to these proceedings. In the proceedings it was agreed that, subject to the effect of "other insurance" provisions in them, both policies covered Baulderstone's liability to Mr Dempsey. As Baulderstone had not "entered into" either contract of insurance, but was simply a third party beneficiary in respect of each policy, it was also agreed that s 45(1) of the Insurance Contracts Act 1984 (Cth), rendering "other insurance" provisions void, was inapplicable.
The first policy was a "Construction Risks - Material Damage, Public and Products Liability Annual Insurance Policy" issued by the present appellant ("Allianz"). The second policy was a "Public and Products/Contract Works Liability Policy" issued by underwriters at Lloyd's of London ("Lloyd's Underwriters"), the present respondents.
Having indemnified Baulderstone in respect of the judgment in favour of Mr Dempsey, Allianz commenced the present proceedings in the Commercial List of the Court seeking a declaration that the Lloyd's Underwriters were liable to indemnify Baulderstone under the policy they issued and seeking equitable contribution from them in respect of the indemnity afforded by Allianz to Baulderstone.
On the application of the Lloyd's Underwriters, Stevenson J ordered, pursuant to r 28.2 of Uniform Civil Procedure Rules 2005 (NSW), that the following question (as amended by agreement on appeal) be determined separately and in advance of any other question in the proceedings: "Whether, on the proper construction of: (a) the Construction Risks - Material Damage, Public and Products Liability Annual Insurance Policy, policy number 9900000476CGR & LGR, issued by the plaintiff; and (b) the Public and Products/Contracts Works Liability Policy, policy number B105809GCOM0430, issued by the defendant, the defendant would have been liable to indemnity Baulderstone Hornibrook Pty Ltd in respect of loss arising out the injury of Thomas Dempsey on 8 September 2009 had the plaintiff not done so."
By judgment of 24 April 2019 Rees J determined that a negative answer should be given to that question and that Allianz's proceedings should accordingly be dismissed ([2019] NSWSC 453).
On appeal, Allianz contended that the separate question should have been answered in the affirmative and that Baulderstone therefore had double insurance in respect of its liability to Mr Dempsey, with the consequence that Allianz is entitled to equitable contribution from the Lloyd's Underwriters, in accordance with the principles stated in Weddell v Road Transport and General Insurance Company Ltd [1932] 2 KB 563 at 567-8.

The Allianz policy

The Allianz policy contained the following presently relevant provisions: "Definitions / Interpretations to this Policy For the purposes of this Policy the following Definitions/Interpretations will apply to all Policy Sections unless otherwise specified. … Underlying Insurance means a policy of insurance arranged by or on behalf of an Insured either voluntarily or pursuant to a Contract (which may include a policy(ies) arranged by joint venture partners, principals, contractors, etc) that provides cover to the Insured for a risk, which save for the Underlying Insurance, would be covered by this Policy. Underlying Insurance includes those policies identified in the Schedule [of which there were in fact none]. … General Conditions to all Sections … 8.17 Difference In Conditions Cover In circumstances where an Underlying Insurance has been arranged, this Policy shall be deemed to be the 'Master Policy'. (a) In the event of the Insured being indemnified by an Underlying Insurance in respect of a claim for which indemnity is available under this Master Policy, the insurance afforded by this Policy shall be excess insurance over the applicable limit of indemnity of the Underlying Insurance. (b) Coverage under this Master Policy shall not apply unless and until a claim for payment is made under the Underlying Insurance up to the amount of the Underlying Limit which, save for the limit of indemnity of the Underlying Insurance, would be covered by this Master Policy. (c) Should any such Underlying Insurance, by virtue of its scope of cover, definitions, deductibles or excesses, conditions or limits of indemnity, not indemnify the Insured in whole or in part in respect of a loss, damage, liability, costs or expenses indemnifiable under this Master Policy, this Master Policy will provide indemnity to the extent that such indemnity is not provided by the terms and conditions of such Underlying Insurance. For the purpose of clarity, it is intended that indemnity by this Policy extends to cover losses not covered under the Underlying Insurance by virtue of the fact that such Underlying Insurance has a higher deductible or excess than the Excess under this Master Policy. (d) The provisions of this clause are subject always to the terms, Conditions and Exclusions of this Master Policy, except as provided under (c) above. … 8.20 Other Insurance Where allowable by law, this Policy is excess over and above any other valid and collectible insurance and shall not respond to any loss until such times as the limit of liability under such other primary and valid insurance has been totally exhausted. The Treasury Managed Fund is not deemed to be regarded as a policy of insurance or Underlying Insurance, for the purposes of this policy."

The Lloyd's policy

The Lloyd's policy contained the following presently relevant provisions: "6. SECTION A - INDEMNITY The Insured is indemnified by this Section in accordance with the Operative Clause for and/or arising out of Injury and/or Damage occurring during the Period of Insurance but not against claims: … COMBINED 83 10. GENERAL EXCLUSIONS This Policy does not cover liability … 10.5 which forms the subject of insurance by any other policy and this Policy shall not be drawn into contribution with such other insurance."

The Judgment at First Instance

To determine whether, as Allianz contended, Baulderstone had double insurance because it was entitled to indemnity under both the Allianz and Lloyd's policies, the primary judge first examined the terms of the two policies separately. On appeal, Allianz criticised this approach but it was an appropriate step for her Honour to take and was supported by authority, including Australian Eagle Insurance Co Ltd v Mutual Acceptance (Insurance) Pty Ltd [1983] 3 NSWLR 59 at 67 and Lambert Leasing Inc v QBE Insurance (Australia) Ltd (2016) 93 NSWLR 166; [2016] NSWCA 254 at [178], citing M A Clarke, The Law of Insurance Contracts (5th ed, 2006).
On appeal Allianz also criticised her Honour for stating that the contra proferentem rule was relevant to the resolution of the dispute between the parties (see [21]) but, as it transpired, that principle did not play any role in her Honour's dispositive reasoning and need not be considered.
Turning to the Lloyd's policy, her Honour noted that cl 10.5 stated that the policy did not provide cover where the liability in question "forms the subject of insurance by any other policy". Her Honour considered that it was enough to attract this provision that "the other policy deals with the particular form of liability" even though it did not in fact provide indemnity because of the existence of an exclusion (at [35]).
Turning to the Allianz policy, her Honour said that if cl 8.20 had been the only "other insurance" provision, there would have been double insurance such as there was in Wedell (at [37]).
Her Honour considered that cl 8.17(a) and (b) of the Allianz policy only applied where there was an entitlement to indemnity, in the same way that cl 8.20 required that. They thus did not for present purposes change the situation to which cl 8.20 gave rise.
Her Honour however considered that cl 18.17(c) was of critical significance for the following reasons: "42 … In the event that the policy wording of the other policy has the result that it will not pay part of all or a claim otherwise covered by the Allianz policy, then the Allianz policy will respond. It seems to me that clause 8.17(c) envisages precisely the scenario before the Court: if the other policy contains an exclusion such that it will not cover liability which is covered under the Allianz policy, then Allianz has agreed to cover such a claim. … 45 Having examined each of the policies individually, it seems to me that the Allianz policy responds to Baulderstone's claim whilst the Lloyds policy does not. It is not a case where the Allianz policy would respond but does not by reason of the existence of the Lloyds policy. Rather, the Allianz policy specifically contemplates a scenario where there is another policy which has been arranged by the insured and which provides cover for a risk also covered by the Allianz policy but does not ultimately result in an indemnity for the insured because of the precise policy wording of that other policy. In that event, Allianz has agreed to indemnify its insured. In those circumstances, there is no scope to apply the specific construction principle in Weddell as there is, in truth, no double insurance. Rather, one policy responds and the other does not. In fact, the Allianz policy responds under clause 8.17(c) because the Lloyds policy does not."
Her Honour thus found that there was no double insurance because Baulderstone was entitled to indemnity under cl 8.17(c) of the Allianz policy but the Lloyd's Underwriters' liability was excluded by cl 10.5 of their policy.

Relevant legal principles

The circumstances in which an insurer may obtain contribution from another insurer who is liable to indemnify an insured in respect of the same loss were authoritatively identified by the plurality in Albion Insurance Co Ltd v Government Office (NSW) (1969) 121 CLR 342 at 345-6; [1969] HCA 55 as follows: "There is double insurance when an assured is insured against the same risk with two independent insurers. To insure doubly is lawful but the assured cannot recover more than the loss suffered and for which there is indemnity under each of the policies. The insured may claim indemnity from either insurer. However, as both insurers are liable, the doctrine of contribution between insurers has been evolved. It began in the second half of the eighteenth century with Lord Mansfield's decisions with respect to marine insurers and there is no doubt that it now applies generally to insurance which provides the insured with an indemnity. There is no reason why the doctrine should not apply to insurance against liability to third parties and there is every reason in principle that it should. The doctrine, however, only applies when each insurer insures against the same risk, although it is not necessary that the insurances should be identical. … There is no double insurance unless each insurer is liable under his policy to indemnify the insured in whole or in part against the happening which has given rise to the insured's loss or liability."
As the primary judge pointed out, insurers now frequently include "other insurance" clauses in their policies to attempt to avoid or deal with the existence of double insurance. Her Honour quoted the following description of such clauses given in Merkin, Colinvaux's Law of Insurance (11th ed, Sweet & Maxwell, 2016) at [12-095]: "These [clauses] include: a requirement on the assured to disclose in pre-contractual negotiations the existence of any other insurance covering the same subject-matter; an obligation on the assured not to take out any further insurance on the insured subject-matter during the currency of the policy, either absolutely, failing which the policy terminates, or in the absence of the insurer's permission (an 'escape' clause); a provision which converts the policy into an excess layer policy in the event that some other insurance is taken out by the assured (an 'excess' clause); and a provision to the effect that in the event of the existence of a number of concurrent insurances, the insurer is to bear only its own proportion of the loss (a 'rateable proportion' clause). The range of other insurance clauses, and the complexities raised where the two policies in any one case contained different other insurance provisions, has led to a situation in which the common law right of an assured to recover from the insurers in such order as he thought fit had been eroded to a significant extent, and had been replaced with difficult and sometimes circular issues of construction" (footnotes omitted).
Using this terminology, the Allianz policy in the present case contained "other insurance" clauses of the "excess" type clause (cll 8.17(a) and (b), 8.20) and the Lloyd's policy contained an "escape" clause (cl 10.5). On appeal, neither party suggested that, if operative, these clauses would have any different effect than two similarly worded competing "excess" clauses or two competing "escape" clauses, or indeed that there was any significance in the fact that one was an "excess" clause and the other was an "escape" clause (compare Colinvaux's Law of Insurance at [12-065]).
The principles to be applied when an insured is prima facie entitled to indemnity under two insurance policies but each policy contains an "other insurance" clause was stated as follows by Rowlatt J in Weddell (at 567-8): "In my judgment it is unreasonable to suppose that it was intended that clauses such as these should cancel each other (by neglecting in each case the proviso in the other policy) with the result that, on the ground in each case that the loss is covered elsewhere, it is covered nowhere. On the contrary the reasonable construction is to exclude from the category of co-existing cover any cover which is expressed to be itself cancelled by such co-existence, and to hold in such cases that both companies are liable, subject of course in both cases to any rateable proportion clause which there may be. In other words, it is true to say that the relative or friend is not 'entitled to indemnity under any other policy' within the meaning of the Road Transport policy, and not 'afforded' indemnity 'by any other insurance' within the meaning of the Cornhill policy, when the other policy negatives liability where there are two policies. At that point the process must cease. If one proceeds to apply the same argument to the other policy and lets that re-act upon the policy under construction, one would reach the absurd result that whichever policy one looks at it is always the other one which is effective."
Weddell has subsequently been treated as authoritative although in National Employers Mutual General Insurance Association Ltd v Haydon [1980] 2 Lloyd's Rep 149 at 156 Templeman LJ emphasised that the principle that it stated is only applicable where the insured is entitled to indemnity under both policies.

Determination of the appeal

In my view, the appeal should be dismissed for the reasons that I give below. These are to the same effect as those that the primary judge gave. I note however that I respectfully disagree with the view that her Honour took concerning cl 10.5 of the Lloyd's policy (see [22] above) but formation of that view was not an essential step in her Honour's dispositive reasoning.
I refer first to cl 10.5 of the Lloyd's policy as that provision was the focus of the Lloyd's Underwriters' first argument on appeal. That argument, as accepted by the primary judge, was that cl 10.5 operated to exclude the Lloyd's Underwriters' liability under the policy where there was another policy that was (in some not clearly defined manner) applicable to the subject loss but which did not in fact provide indemnity. This operation was said to flow from the use in the clause of the words "the subject of insurance by any other policy" rather than words such as "the subject of indemnity by any other policy", the word "indemnity" being used in a number of other provisions of the Lloyd's policy. The consequence was submitted to be that in the present circumstances the Lloyd's Underwriters did not have any liability under their policy even if Baulderstone was not entitled to indemnity under the Allianz policy, the result being that there was no double insurance and Allianz was not entitled to contribution from the Lloyd's Underwriters in respect of what it had paid to Baulderstone
I do not accept this argument. The words "the subject of insurance by any other policy" in my view referred to insurance (that is, an entitlement to indemnity) provided by that policy in relation to the subject claim, not to insurance that might respond to some claims related (in some undefined fashion) to the other policy, but not to the claim under consideration. This reflects the ordinary meaning of the words. This meaning should be applied in the absence of any strong contradiction such as exists in relation to the somewhat similar issue that arises in relation to the meaning of "Underlying Insurance" in the Allianz policy (see [43] below).
It would be surprising indeed if cl 10.5 of the Lloyd's policy operated to exclude liability under the policy when there was simply another insurance policy of arguable relevance but not one that in fact provided indemnity, and not one that, but for cl 10.5, gave rise to double insurance. Support for my view is to be derived from the latter part of cl 10.5 which suggests that the purpose of including cl 10.5 was to avoid an equitable contribution claim being made. Contribution would only be payable if there were double insurance, that is, if there were a dual entitlement to indemnity.
These considerations are not outweighed by the absence of the use in cl 10.5 of the word "indemnity". That fact is at best a weak indicator in favour of the Lloyd's Underwriters. The argument amounts to little more than saying that there were other ways in which the parties could have expressed their intent more clearly than they did.
In these circumstances, to support a conclusion that cl 10.5 of the Lloyd's policy excluded the Lloyd's Underwriters' liability under the policy, and therefore excluded their exposure to a contribution claim, it is necessary for them to show that Baulderstone was entitled to indemnity under the Allianz policy, notwithstanding the "other insurance" clauses contained in it. It is agreed that Baulderstone was entitled to that indemnity, subject to the effect of the "other insurance" clauses, 8.17 and 8.20, of the Allianz policy, to which I now turn.
Clause 8.20 of the Allianz policy was a clearly expressed "other insurance" provision of the "excess" type. If it were the only "other insurance" provision in the Allianz policy, the principles in Weddell would have been applicable. That is, there would have been a prima facie liability of each insurer to indemnify Baulderstone in respect of the subject loss, subject to the "other insurance" provisions in each policy purporting to exclude liability because of the existence of the other policy. Weddell indicates that in these circumstances Allianz, which had indemnified Baulderstone in respect of its loss, would have been entitled to contribution from the Lloyd's Underwriters.
Clause 18.17 then requires consideration. Its chapeau limited its operation to "circumstances where an Underlying Insurance [had] been arranged". The expression "Underlying Insurance" was defined earlier in the policy (see [21] above). That definition referred to another policy that provided insurance cover for a risk "which save for the Underlying Insurance, would be covered by this Policy". In my view, another policy qualified as "Underlying Insurance" for the purposes of this definition if it prima facie provided indemnity for the risk in question and, leaving aside any "other insurance" provision in the Allianz policy, that latter policy did likewise. That is, the definition was satisfied, so far as it related to Allianz's liability, when the only reason that the relevant risk was not indemnifiable under the Allianz policy was the existence of the other policy that was asserted to be "Underlying Insurance". That other policy could only be relevant to Allianz's liability under its policy (as the definition contemplated it was) if its existence was stated to be a ground of exclusion of Allianz's liability, as it arguably was by cll 8.17 and 8.20 of Allianz's policy. There is no other reason apparent from the definition to refer to that other policy.
I have said that another policy was "Underlying Insurance" if it "prima facie" provided indemnity because both cll 8.17(a) and (c), to which I will come below, contemplated that a policy might be "Underlying Insurance" even if it did not provide indemnity in respect of the claim in question. Thus cl 8.17(a) commenced with the words "[i]n the event of the Insured being indemnified by an Underlying Insurance" and cl 8.17(c) specifically identified reasons why an "Underlying Insurance" policy may not provide indemnity. To make sense of the definition of "Underlying Insurance", it must therefore be taken to refer to an insurance policy that prima facie provided cover but, for at least the reasons for an absence of cover identified in cl 8.17(c), did not in fact do so in respect of the subject claim. As I indicate below, one such identified reason ("conditions") is capable of embracing "other insurance" provisions.
On this basis, the chapeau to cl 8.17 was satisfied in the present case because there was another policy of insurance (namely the Lloyd's policy) which prima facie "provid[ed] cover" and the Allianz policy (leaving aside the effect of its "other insurance" provisions) did likewise.
As I have noted, in contrast to the definition of "Underlying Insurance", cl 8.17(a) was not concerned with the prima facie position under the other policy (the Lloyd's policy) but with whether the other insurance in fact provided an indemnity. In the circumstances that existed, the sole reason why the Lloyd's policy might not have provided that indemnity was the "other insurance" exclusion in cl 10.5. Whether that exclusion operated depended in turn on whether the "other insurance" provisions in the Allianz policy excluded liability under that policy. If the remaining provisions of cl 8.17 (in particular cl 8.17(c)) are ignored, the same situation that arose in Weddell would thus have existed.
The solution provided by Weddell is that in these circumstances the "other insurance" provisions in each policy are to be treated as cancelling each other out and the insurer which pays out the insured is entitled to contribution in equity from the other. On this basis, Allianz would have succeeded in the proceedings.
Account must now however be taken of the remainder of cl 8.17 in the Allianz policy. Clause 8.17(b) did not have any presently relevant effect. It simply qualified 8.17(a) by suspending the qualified indemnity for which cl 8.17(a) provided until a claim was made under the relevant other insurance.
Like the primary judge, I however consider cl 8.17(c) to be of critical significance. Relevantly, it provided that if indemnity to the insured was not available under the "Underlying Insurance" (which, as I have said above, the Lloyd's policy was) the Allianz policy would provide indemnity. That was stated to be the case if indemnity was not available under the other policy (the Lloyd's policy) "by virtue of its scope of cover, definitions, deductibles or excesses, conditions or limits of indemnity". The word "conditions" in that expression was apt to include reference to cl 10.5 of the Lloyd's policy. On appeal, the appellant however submitted that cl 8.17(c) was only concerned with relatively confined limitations on the cover provided by the other policy. The words "scope of cover" and "indemnify the Insured in whole or in part" however in my view tend against that as they allow for the possibility that the matters referred to in the clause may have resulted in no indemnity being available under the other insurance.
Moreover, an inability on Allianz's argument to identify precisely what type of conditions or other such matters would or would not result in cl 18.7(c)'s operation, and then an inability to identify any clear rationale for drawing such a distinction as there was, tend in the same direction. As I see it, there is no reason not to give the words of cl 18.17(c) their natural meaning, which, in their application in the present context, would mean that if Baulderstone was not entitled to indemnity under the Lloyd's policy because of its cl 10.5, Allianz would, by reason of cl 8.17(c) in its policy, be obliged to provide that indemnity.
In other words, there was no double insurance because cl 8.17(c) of the Allianz policy provided indemnity even though (and in fact, because) the Lloyd's policy did not, and the Lloyd's policy did not provide indemnity because the existence of cover under the Allianz policy excluded the Lloyd's Underwriters' liability by reason of the operation of cl 10.5 of the Lloyd's policy.
In these circumstances, the primary judge was correct to answer the question for determination in the negative, that is, to say that the Lloyd's Underwriters would not have been liable to indemnify Baulderstone if Allianz had not done so, and to reject Allianz's claim for contribution from the Lloyd's Underwriters.
As a final matter, I add that cl 8.17(d) does not affect this conclusion. Indeed, if anything, it provides support for the conclusion by giving paramountcy to cl 8.17(c) and thus confirming that the indemnity provided for by cl 8.17(c) of the Allianz policy is given notwithstanding the "other insurance" provisions in cl 8.17 and cl 8.20.
For these reasons, the appeal should be dismissed with costs.
MEAGHER JA: The issue in this appeal is whether one or both of two policies of insurance responds to indemnify Baulderstone Hornibrook Pty Ltd (Baulderstone) against its liability as a contractor for injuries to a worker engaged in road works undertaken for the Roads and Traffic Authority of New South Wales (RTA): Allianz Insurance Australia Limited v Certain Underwriters at Lloyd's of London subscribing to policy number B105809GCOM0430 [2019] NSWSC 453. That question turns on the construction of clauses in those policies which address the existence of 'other' insurance, and in the case of one of the policies, of a clause providing excess of loss and 'difference in conditions' cover. For the reasons which follow, the appeal should be allowed, and orders made which give effect to the position being that Baulderstone was entitled to an indemnity under both policies with the consequence that each insurer was entitled to contribution from the other in the event that one paid or contributed more than its rateable proportion of that liability to indemnify.

The insurance provided by the two policies

Baulderstone was insured under two policies of insurance, but in neither case as a contracting party. The first in time was issued by the appellant (Allianz) to the RTA for the period 1 October 2008 to 1 October 2009. It provided cover against material damage and public and products liability, the relevant insured operations including those undertaken under road construction and maintenance contracts commenced during that period of insurance. Baulderstone was insured as a contractor of the RTA for whom the RTA was obliged to arrange insurance. Section 2 indemnified Baulderstone against its legal liability to pay damages or compensation for personal injury happening during the construction period of any relevant contract and in connection with business activities including those of "any contractor". The limit of that cover was $20 million each occurrence.
The second policy was issued by the respondent underwriters at Lloyd's to Bilfinger Berger Australia Pty Ltd (Bilfinger) and relevantly its subsidiaries and related companies, and provided "public and products/contract works liability" cover for the period 1 January 2009 to 1 January 2011. Under Section A, Baulderstone as a subsidiary of Bilfinger was indemnified against its liability to pay compensation for injury occurring during the period of insurance where that liability arose out of the insured business, which included "building and civil engineering activities" and "road maintenance". The limit of that cover was $17 million any one occurrence and in the annual aggregate.

The 'other' insurance and 'difference in conditions' clauses

The general conditions of the Allianz policy included an 'other' insurance clause which converted the cover against loss under that policy to excess insurance in the event there was other "valid and collectible insurance" (cl 8.20). It also separately provided that the policy would operate as excess cover if there was Underlying Insurance (a defined term), in which event it would also provide 'difference in conditions' cover at the primary insurance level if the scope of cover available under the Underlying Insurance was in some respect less favourable to the Insured than that provided under the Allianz policy (cl 8.17). The Lloyd's policy contained a general exclusion which provided that it did not cover liability which "forms the subject of insurance by any other policy" (cl 10.5).
It is accepted that in the absence of these provisions each policy would indemnify Baulderstone against its liability to the worker, who on 8 September 2009 suffered serious injuries when struck by a car whilst working for one of its subcontractors. That liability was determined by a consent judgment in the worker's favour for $1,025,000.
The parties are not at issue about the applicable principles. First, Insurance Contracts Act 1984 (Cth), s 45 does not apply as Baulderstone was not a contracting insured under either policy: Zurich Australian Insurance Ltd v Metals & Minerals Insurance Pte Ltd (2009) 240 CLR 391 at [26]; [2009] HCA 50; Lambert Leasing Inc v QBE Insurance (Australia) Ltd (2016) 93 NSWLR 166 at [119]-[133]; [2016] NSWCA 254. Secondly, where there is said to be double insurance, which policy responds and to what extent depends on the interpretation of the relevant contracts. If the result of construing the policies independently is that each would respond to the liability but for the existence of the other, "the exclusions are treated as cancelling each other out", with the result that both insurers remain liable. That outcome is achieved as a matter of construction by excluding "from the category of co-existing cover any cover which is expressed to be itself cancelled by such co-existence": Weddell v Road Transport and General Insurance Co Ltd [1931] 2 KB 563 at 567-8 (Rowlatt J); National Employers Mutual General Insurance Association Ltd v Haydon [1980] 2 Lloyd's Rep 149 at 152 (col 2) (Stephenson LJ); Lambert Leasing Inc v QBE Insurance at [176]-[178] (Payne JA); Malcolm A Clarke, The Law of Insurance Contracts (6th ed, 2009, Informa) at par 28-9B.
The relevant provisions in the policies are: ALLIANZ POLICY Schedule … Underlying Insurance (general condition 8.17): Underlying Insurance shall include, but are not limited to, those policies and types of policies described below or their substitute polices: [No policies are specified.] Definitions / Interpretations to this Policy … Underlying Insurance means a policy of insurance arranged by or on behalf of an Insured either voluntarily or pursuant to a Contract (which may include a policy(ies) arranged by joint venture partners, principals, contractors, etc) that provides cover to the Insured for a risk, which save for the Underlying Insurance, would be covered by this Policy. Underlying Insurance includes those policies identified in the Schedule. General Conditions to all Sections 8. General Conditions The following Conditions apply to all Sections of this Policy. … 8.17 Difference in Conditions Cover In circumstances where an Underlying Insurance has been arranged, this Policy shall be deemed to be the 'Master Policy'. (a) In the event of the Insured being indemnified by an Underlying Insurance in respect of a claim for which indemnity is available under this Master Policy, the insurance afforded by this Policy shall be excess insurance over the applicable limit of indemnity of the Underlying Insurance. (b) Coverage under this Master Policy shall not apply unless and until a claim for payment is made under the Underlying Insurance up to the amount of the Underlying Limit which, save for the limit of indemnity of the Underlying Insurance, would be covered by this Master Policy. (c) Should any such Underlying Insurance, by virtue of its scope of cover, definitions, deductibles or excesses, conditions or limits of indemnity, not indemnify the Insured in whole or in part in respect of a loss, damage, liability, costs or expenses indemnifiable under this Master Policy, this Master Policy will provide indemnity to the extent that such indemnity is not provided by the terms and conditions of such Underlying Insurance. For the purpose of clarity, it is intended that indemnity by this Policy extends to cover losses not covered under the Underlying Insurance by virtue of the fact that such Underlying Insurance has a higher deductible or excess than the Excess under this Master Policy. (d) The provisions of this clause are subject always to the terms, Conditions and Exclusions of this Master Policy, except as provided under (c) above. … 8.20 Other Insurance Where allowable by law, this Policy is excess over and above any other valid and collectible insurance and shall not respond to any loss until such times as the limit of liability under such other primary and valid insurance has been totally exhausted. The Treasury Managed Fund is not deemed to be regarded as a policy of insurance or Underlying Insurance, for the purposes of this policy. LLOYD'S POLICY … 10. General Exclusions This Policy does not cover liability … 10.5 which forms the subject of insurance by any other policy and this Policy shall not be drawn into contribution with such other insurance

The conclusion of the primary judge

The primary judge, restricting her initial consideration to the 'other' insurance clauses, being cl 8.20 of the Allianz policy and cl 10.5 of the Lloyd's policy, expressed the tentative conclusion at Judgment [37] that if cl 8.20 was the "only relevant clause" in the Allianz policy, the principle enunciated in Weddell "may apply". Her Honour then went on to consider the application of cl 8.17 of the Allianz policy, holding (1) that the Lloyd's policy was Underlying Insurance for the purposes of that clause; (2) that cll 8.17(a), (b), (c) were "independent" provisions; and (3) critically, that the 'difference in conditions' cover provided by cl 8.17(c) was enlivened because cl 10.5 applied to exclude cover under the Lloyd's policy.
Her Honour concluded at Judgment [45]: Having examined each of the policies individually, it seems to me that the Allianz policy responds to Baulderstone's claim whilst the Lloyds policy does not. It is not a case where the Allianz policy would respond but does not by reason of the existence of the Lloyds policy. Rather, the Allianz policy specifically contemplates a scenario where there is another policy which has been arranged by the insured and which provides cover for a risk also covered by the Allianz policy but does not ultimately result in an indemnity for the insured because of the precise policy wording of that other policy. In that event, Allianz has agreed to indemnify its insured. In those circumstances, there is no scope to apply the specific construction principle in Weddell as there is, in truth, no double insurance. Rather, one policy responds and the other does not. In fact, the Allianz policy responds under clause 8.17(c) because the Lloyds policy does not.

Disposition of appeal

It is convenient to start with the construction of the Lloyd's policy. Clause 10.5 excludes from "cover" any liability "which forms the subject of insurance by any other policy". Lloyd's contends that language is not limited in its scope to insurance which indemnifies against the relevant liability and submits, as the primary judge suggests at Judgment [35], that it excludes any liability within the insuring clause of the other policy, irrespective of whether, having regard to the exclusions and conditions of that policy, it actually provides an indemnity against that liability.
In my view the reference in cl 10.5 to a liability which is the "subject of insurance" is to one which is covered, in the sense of indemnified against, under any other insurance. The concluding words of that clause - that the Lloyd's policy should not be "drawn into contribution with such other insurance" - make tolerably clear that the "insurance" earlier referred to provides an indemnity and would otherwise attract the principles of contribution which only apply where there is an obligation to indemnify under two or more insurances: see Albion Insurance Co Limited v Government Insurance Office (1969) 121 CLR 342 at 345 (Barwick CJ, McTiernan and Menzies JJ), 350-351 (Kitto J); [1969] HCA 55. Furthermore, the Lloyd's policy is to be given a businesslike interpretation, which would not be the outcome if the circumstances in which cl 10.5 excludes cover include where the "other policy" may not respond, leaving its insured without an indemnity under that policy or the Lloyd's policy: Wilkie v Gordian Runoff Ltd (2005) 221 CLR 522; [2005] HCA 17 at [15] (Gleeson CJ, McHugh, Gummow and Kirby JJ). Accordingly by cl 10.5, the Lloyd's policy excludes the right to an indemnity in respect of any "liability" which is indemnified against by any other insurance.
It is necessary next to consider the provisions of the Allianz policy, commencing with cl 8.20. That clause purports to make the cover provided under that policy "excess over and above any other valid and collectible insurance" and provides that as an excess policy, the Allianz policy should not respond to any loss until the limit under "such other primary and valid insurance has been totally exhausted". The earlier reference to "valid and collectible" insurance is to insurance which has legal force issued by a solvent insurer: Clarke, The Law of Insurance Contracts at par 28-9B, citing Alabama Insurance Guarantee Association v Magic City Trucking Service Inc, 947 So 2d 849 at 854-855. There is no issue between the parties as to the Lloyd's policy answering that description. Accordingly by cl 8.20 considered alone, the Allianz policy excludes an indemnity in respect of any liability insured under another policy, by the conversion of the Allianz insurance to excess of loss cover due to the existence of that other policy.
It follows that construed separately, and without regard to cl 8.17 of the Allianz policy, each policy would be liable as primary insurance but for the existence of the other. Adopting the language of Rowlatt J in Weddell, the liability of Allianz is cancelled by the co-existence of the Lloyd's policy which cover in turn is expressed to be cancelled by the co-existence of the Allianz policy. That being so, it was rightly conceded on behalf of Lloyd's in argument in this Court that if cl 10.5 is construed as I have concluded it should be construed, the effect of the two 'other' insurance clauses considered alone is that as a matter of construction they cancel each other out, with the result that neither is effective so as to leave each policy to apply according to its terms.
However Lloyd's submits that the independent consideration of the position under the Allianz policy also requires attention to the application of cl 8.17, before any resort to the principle applied above.
By its express terms, cl 8.17 applies only "where an Underlying Insurance has been arranged", that definition requiring for its satisfaction that such insurance provide cover against the relevant risk, here Baulderstone's liability to the worker. In that event, the Allianz policy is deemed to be a "Master Policy" and by paras (a) to (d) operates as excess insurance in respect of claims "indemnified by [that] Underlying Insurance", and provides 'difference in conditions' cover to the extent that the terms of that Underlying Insurance are less favourable or more onerous to the insured than the terms of the primary cover which otherwise would have been provided by the Allianz policy. Paragraph (d) makes clear that to the extent the Allianz policy provides excess insurance, that cover is subject to the "terms, Conditions and Exclusions" of that policy; and that to the extent it provides 'difference in conditions' cover at the primary layer by reference to those same terms, conditions and exclusions, it does so as provided in para (c). The operation of policies referred to as "Master Policies" in the context of other policies written as primary cover is described by the authors of DK Derrington and RS Ashton, The Law of Liability Insurance (3rd ed, 2013) vol 2 at par 11-477, by reference to the statement of how such cover might operate adopted in Flexys America LP v XL Insurance Co Ltd [2010] Lloyd's Rep. IR 132 at [20]. That statement made clear that at the relevant time there were a number of different clauses providing such cover used in the London market, with the result that each "must be looked at on its own merits".
The Lloyd's policy is not identified in the schedule to the Allianz policy as Underlying Insurance. However, as it was arranged by Bilfinger on behalf of its subsidiary Baulderstone, it satisfies the first part of the definition of Underlying Insurance. The remaining question is whether in the language of the second part of that definition, the Lloyd's policy "provides cover to [Baulderstone] for a risk, which save for [the Lloyd's insurance] would be covered by [the Allianz policy]". The references to insurance providing "cover for a risk" and to a "risk covered" are to an insured event which has happened, here relevantly the establishment of Baulderstone's liability to pay compensation. In the opening words of general exclusion 10 of the Lloyd's policy, "cover" is used in the same sense. The expression "save for" in the definition is used in its ordinary sense and means 'except for' or 'leaving aside', so as to require that the existence of cover under the Underlying Insurance have the consequence that the Allianz policy does not provide the primary cover it would have in respect of that risk in the absence of the other insurance. In doing so, the definition accommodates the operation of cl 8.20 which, in the circumstance of double insurance, converts the Allianz primary cover to insurance that is excess of the loss covered under the other insurance (which then satisfies the definition of Underlying Insurance). That cl 8.20 can have the effect of making any other "valid and collectible insurance" Underlying Insurance for the purpose of the Allianz policy is expressly acknowledged by its concluding sentence which is directed to excluding from its operation self-insurance arrangements of government agencies via the Treasury Managed Fund, administered by the Self Insurance Corporation under the NSW Self Insurance Corporation Act 2004 (NSW).
Clause 8.20 does not have that operation in relation to the Lloyd's policy because cl 10.5 produces the outcome that each clause is to be treated as cancelling the other out. It follows that because of cl 10.5 in the Lloyd's policy, that policy of insurance is not Underlying Insurance, and for that reason cl 8.17 has no application in relation to it.
The primary judge concluded otherwise. Her Honour considered the operation of cl 8.17 independently of the operation of the Lloyd's policy and in doing so concluded that the introductory words to cl 8.17, which include the defined term Underlying Insurance, are satisfied if the insured "has another policy which on its face covers the same risk as the Allianz policy" (Judgment [39]). That interpretation does not give effect to the clear language of that definition, as the primary judge appears to acknowledge; and the departure from that language is not justified by the application of any accepted principle of construction. Where the parties have chosen to use a definition, effect should be given to it, as was the case in In re George and the Goldsmiths and General Burglary Insurance Association Ltd [1899] 1 QB 595 esp at 602 (Lord Russell CJ), 607 (A L Smith LJ) and 609 (Collins LJ) where the policy adopted a particular definition of "damage by burglary and housebreaking". See generally Perry Herzfeld, Thomas Prince and Stephen Tully, Interpretation and Use of Legal Sources: The Laws of Australia (2013, Thomson Reuters) at par 25.3.220.
Applying that definition, Underlying Insurance describes any policy specified in the schedule as well as any policy the existence of which by the operation of cl 8.20 converts the Allianz cover to excess insurance. The former (specified) policy may or may not provide cover against a risk which is also covered under the Allianz policy. The latter policy will provide such cover because that is the condition for the operation of cl 8.20. In relation to the former, cl 8.17(a) provides that where there would otherwise be double insurance, the Master Policy, as the Allianz policy is deemed for the purpose of the clause to be, affords excess of loss insurance over the limit of indemnity of the underlying cover. In relation to insurance which satisfies the definition, but not because it is specified in the schedule, cl 8.20 will already have operated with that effect.
Clauses 8.17(b) and (c) are wholly consistent with this construction of the language of the chapeau and cl 8.17(a). Paragraph (b) assumes the operation of para (a) in affording excess insurance in circumstances where the Underlying Insurance provides primary cover. The condition that "coverage" under the Master Policy is not engaged unless and until a claim for payment is made on the Underlying Insurance applies not only to the excess insurance "coverage" afforded by para (a), but also to the 'difference in conditions' cover provided by para (c).
Paragraph (c) also proceeds on the basis that the Master Policy is providing excess cover, and the Underlying Insurance primary cover. If the Underlying Insurance does not provide any primary cover against a claim, paras (a) and (b) would not be engaged and there would be no point whatsoever in para (c) providing 'difference in conditions' cover because the Allianz policy would provide the primary cover. The 'difference in conditions' cover assumes the Underlying Insurance provides primary cover against the relevant claim, and in the language of para (c), only applies in the event that the Underlying Insurance does not indemnify the insured "in whole or in part" in respect of any "loss, damage, liability, cost or expenses indemnifiable" under the Master Policy. In other words, it is directed to providing cover at the primary level where the scope of cover under the Underlying Insurance is not as favourable as that under the Allianz policy. The example given in cl 8.17(c) of losses not covered under the Underlying Insurance "by virtue of its having a higher deductible or excess" than the Master Policy makes this clear. It is apparent from this analysis that cll 8.17(a), (b) and (c) do not operate independently (cf Judgment [40]).
Finally it follows if, contrary to my view, the Lloyd's policy was Underlying Insurance providing primary cover against Baulderstone's liability, that cl 8.17(c) would not provide 'difference in conditions' insurance. That is because cl 8.17(c) only provides that cover where the insurance provided by the Allianz policy - operating as a Master Policy - is "excess insurance over the applicable limit of indemnity of the Underlying Insurance". In that event cl 10.5 would not be engaged, the Baulderstone liability not being the subject of any primary insurance provided by Allianz. The primary judge's analysis at Judgment [42], in assuming the continued application of the "exclusion" in cl 10.5 when considering the operation of cl 8.17(c), does not appear to take account of her Honour's earlier and correct conclusions at Judgment [40] and [41] that the Master Policy, and therefore the Allianz cover, would provide excess of loss cover with the result that there could be no double insurance.

Proposed Orders

For these reasons the appeal should be allowed and orders made to give effect to the position being as I have described in [54] above. That is achieved if, as the parties have agreed, this Court answers the revised separate question set out by Macfarlan JA at [18] in the affirmative.
Accordingly the orders I propose are: 1. Appeal allowed. 2. Set aside the orders made by Rees J on 24 April 2019. 3. The question posed for separate determination by Stevenson J as amended by the parties on 13 September 2019: "Whether, on the proper construction of: (a) the Construction Risks - Material Damage, Public and Products Liability Annual Insurance Policy, policy number 9900000476CGR & LGR, issued by the plaintiff; and (b) the Public and Products/Contracts Works Liability Policy, policy number B105809GCOM0430, issued by the defendant, the defendant would have been liable to indemnify Baulderstone Hornibrook Pty Ltd in respect of loss arising out of the injury of Thomas Dempsey on 8 September 2009 had the plaintiff not done so" should be answered "Yes". 1. Respondent pay the appellant's costs of the appeal and the costs of the separate question in the Court below.
The ex tempore reasons of Stevenson J, justifying the making of the order for the separate determination of the question dealt with above, suggest there may remain issues between the parties in relation to the consent judgment entered against Baulderstone on 29 January 2015. Those matters and any remaining costs in the Court below should be dealt with by a judge in the Commercial List.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 November 2019

Self Insurance Corporation Act 2004(NSW)

First, Insurance Contracts Act 1984(Cth)

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