INPEX OPERATIONS AUSTRALIA PTY LTD -v- AIG AUSTRALIA LTD [No 2] [2023] WASC 61 (3 March 2023) - WASC 2023 case summary — Zoe

WAWASC

INPEX OPERATIONS AUSTRALIA PTY LTD -v- AIG AUSTRALIA LTD [No 2] [2023] WASC 61 (3 March 2023)

[2023] WASC 61

Supreme Court of WA|2023-03-03|Before: Lundberg J

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Source facts

Court

Supreme Court of WA

Decision date

2023-03-03

Before

Lundberg J

Source

Original judgment source is linked above.

Judgment (178 paragraphs)

[1]

These two proceedings concern claims made by the plaintiff under two insurance policies in respect of damage allegedly suffered at the onshore part of the Ichthys LNG Project, which is located near Darwin in the Northern Territory (Ichthys LNG Project). The plaintiff is the principal of the Ichthys LNG Project. In general terms, the plaintiff alleges that damage occurred to the piping, equipment and other apparatus, and to the associated insulation systems, which form part of this immense liquefied natural gas facility.
For convenience, and as the parties have adopted a similar styling, I will refer to the consolidated proceedings entitled CIV 1631 of 2020 and CIV 1620 of 2020 as the CAR Proceedings,[1] and to the proceedings entitled CIV 1729 of 2020 as the EAR Proceedings.[2] As will be seen, each proceeding is concerned with claims under a particular insurance policy. There are also related proceedings pending in the Federal Court of Australia, but I need not outline the substance of those proceedings for the purposes of determining the current applications.[3]
These interlocutory reasons for decision concern applications filed by the plaintiff in each proceeding seeking orders for split or separate trials (the Separate Trial Applications).[4] The orders are sought by the plaintiff pursuant to Order 32 rule 4 or 5 of the Rules of the Supreme Court 1971 (WA) (RSC).[5] In essence, the plaintiff has applied for orders to split the proceedings such that the first substantive trial will hear and determine several 'substantive issues', and only thereafter will there be a further trial on the 'quantification issues'. The plaintiff has delineated these issues in the annexures to its chamber summonses.[6]
For the reasons which follow, I am unpersuaded that the utility, economy and fairness of the separate trials proposed by the plaintiff in these proceedings has been clearly made out. I have reached the view that the proper approach, at least at present, is that the usual position should remain, namely that all issues in the proceedings be tried together. In reaching that conclusion, I should emphasize that this is not a conclusion which is intended to foreclose such an approach at a later stage of the proceedings, nor do I wish to discourage any of the parties from continuing to explore alternative procedural methods by which the burdens of cost, time and judicial resources which are inherent in litigation of this magnitude might be better managed. These reasons should not be seen as a criticism of the plaintiff for exploring a potential procedural alternative, albeit one to which I am presently unable to accede.

[3]

The plaintiff in both the CAR Proceedings and the EAR Proceedings is INPEX Operations Australia Pty Ltd, which I will refer to as Inpex Operations or the plaintiff. Inpex Operations is the project principal. It entered into an engineering, procurement, supply, construction and commissioning contract (EPC Contract) with JKC Australia LNG Pty Ltd (JKC) in relation to the Ichthys LNG Project.
There are two insurance policies which lie at the centre of these proceedings. Inpex Operations claims an indemnity under both policies against damage to insured property in relation to specified coating and insulation systems on piping and equipment used in the facility.
The first policy is pleaded in the CAR Proceedings, and is entitled the 'Constructions Risk - Material Damage Project Insurance Policy' which was entered into on or about 18 January 2013 (known as the CAR Policy).[7] Inpex Operations is the named insured under this policy. JKC is also an insured within the relevant definition. The CAR Policy was obtained by Inpex Operations pursuant to its obligation to do so under the EPC Contract, to obtain and maintain an insurance policy to cover the onshore plant under construction, and to cause JKC and other contractors, to be added as additional insureds.
The second policy is pleaded in the EAR Proceedings and is entitled the 'Erection All Risks and Difference in Conditions Insurance' which was entered into on or about 14 February 2013 (known as the EAR Policy).[8] The named insured under the EAR Policy is JKC, which has purportedly assigned its rights in this respect to Inpex Operations.[9]
The insurer under the CAR Policy is a syndicate of some 25 insurance companies. For present purposes I need only mention the first defendant which is AIG Australia Ltd (AIG) and the sixth defendant which is Mitsui Sumitomo Insurance Company, Limited (Mitsui Sumitomo). There is only one insurer under the EAR Policy, which is also Mitsui Sumitomo. For convenience, I will refer to the balance of the defendant insurers in the CAR Proceedings as the AIG Defendants.
The AIG Defendants are collectively represented by Wotton + Kearney in the CAR Proceedings. Mitsui Sumitomo is represented by Gillis Delaney in both the CAR Proceedings and in the EAR Proceedings. The plaintiff is represented by Allen & Overy in both proceedings.

[12]

(a) Whether JKC's assignment of its claims to the plaintiff is valid and enforceable?
>
> (b) Whether the plaintiff is permitted to claim and recover under the CAR Policy in its capacity as an insured or an assignee (and under the EAR Policy)?
>
> (c) Whether each item of Insured Property has suffered Damage, as that term is defined in the CAR Policy (and the EAR Policy) and, if so, by reason of what mechanism?
>
> (d) In respect of any Damage: > > > (i) whether the Damage is fortuitous;[22]
> >
> > (ii) whether and when the Damage occurred and commenced during the insurance period under the CAR Policy (and the EAR Policy);
> >
> > (iii) whether the Damage is excluded under Exclusion 3.2 of the CAR Policy (which is the 'Wear and Tear' exclusion), pleaded by the AIG Defendants and Mitsui;
> >
> > (iv) the impact of statutory time bars on the plaintiff's claim; and
> >
> > (v) whether, and to what extent, the plaintiff failed to mitigate its loss in respect of the Damage; > >
>
> (e) In respect of any Damage warranting quantification, and for the purposes of any such quantification, what type of remediation is required (and thus is to be the basis for quantification) for each Damage mechanism on each item of Insured Property, including: > > > (i) the nature and extent of remediation;
> >
> > (ii) the timing and circumstances of the remediation (including whether it can be performed over an extended period of years, or otherwise); and
> >
> > (iii) for the purposes of the LEG 2 Exclusion in the CAR Proceedings, where Damage occurred to any portion of the Insured Property containing any defect of material, workmanship, design, plan or specification, the remediation by way of replacement or rectification (including its nature and extent) that was required immediately before the Damage occurred (and similarly for the LEG3 Exclusion in the EAR Proceedings). > >
>
> (f) In respect of any Damage warranting quantification, and for the purposes of any such quantification, whether or not such Damage was part of an occurrence or series of occurrences consequent upon or attributable to one source or original cause in common with other instances of Damage to Insured Property.

[47]

The plaintiff expressly accepts the above principles.[49] The plaintiff also recognises that the apparent benefits of a separate trial of issues can prove to be illusory, and it is a course that can cause the very delay, expense and uncertainty it was intended to avoid. The plaintiff observes that while, generally, a trial on liability alone would be shorter and less costly than assessing liability and damages together, it may not in fact lead to the overall action being resolved sooner or at a lesser cost given that a separate trial on quantum will be required if the plaintiff is successful on liability. The plaintiff also acknowledges that separate trials can increase the risk of separate appeals, meaning unresolved damages or quantum issues are put on hold until the appeal process is complete on liability issues.[50]
It has been said that a separate trial of issues will generally only be appropriate in cases where there is a clear line of demarcation between the issues, and the determination of one in isolation from the other is likely to result in a substantial saving in time, inconvenience and expense.[51]
Conformably with this 'clear line of demarcation' proposition, there is nothing unusual in allowing questions of liability to be determined separately from questions of quantum of damages.[52] This is particularly appropriate in circumstances where the resolution of the assessment of damages is likely to be particularly complex, or where uncertainties and difficulties in making an assessment of quantum in the course of a single trial are anticipated, such as to favour a separate trial on quantum.[53] The plaintiff observes in its submissions that separate trials are common in intellectual property cases, particularly where the financial aspects of the remedy sought are complex.[54]
The determination of an application for separate trials requires a careful balancing of the prospective advantages and disadvantages, bearing in mind the uncertainties of litigation. Ultimately, the decision to be made is a discretionary one and the discretion is to be exercised having regard to, and weighing, all the relevant considerations.[55] In the English context, this process is sometimes described as a 'pragmatic balancing exercise'.[56]

[50]

A recent example in which an Australian court has ordered a split in large and complex proceedings can be found in Brisbane Airport Corporation Pty Limited v Arup Pty Limited [2020] QSC 202 (Applegarth J). Briefly stated, the defendant provided geotechnical, engineering and other consultancy services to the plaintiff airport. After cracks were identified in the newly constructed apron and taxiway at the airport terminal, the airport sued the defendant for negligence and, in the alternative, for misleading or deceptive conduct arising out of alleged representations in relation to the design, asserting five defects. The plaintiff alleged that extensive works were required to rectify these defects. Applegarth J noted that, if the defendant was found liable in any one or more of these five respects, then the basis of its liability and the nature of the defect would be relevant to the extent of rectification works required to address the particular defect and therefore the quantum of damages to be awarded to the plaintiff.[58]
A major and contentious aspect of the airport's quantum claim was the staging of rectification works. The cost of the rectification scheme was said to be based upon a proposed program of work, and the sequencing and cost of undertaking that work depended on operational restrictions the airport had instructed its experts to assume.[59] As the airport had remained operational, it appeared that the plaintiff (at least prior to the COVID-19 pandemic) was unable to close bays or taxiways to perform work otherwise than in off-peak periods and only by allowing the contractor to work on one front, or stage, at any one time. The time and other requirements substantially increased the cost of rectification.[60]
The onset of the COVID-19 pandemic meant, according to the defendant, that the operational restrictions were no longer required. As the preparation of the quantum case was in something of a state of flux, the defendant sought orders for a separate trial on liability (with the quantum of the airport's rectification works, mitigation issues, and betterment issues to be held over to a second trial, if required). The defendant urged this course upon the court for additional reasons as well, including that the scope and extent of a trial on the quantum issues depended upon the court's findings as to liability. The defendant contended that a single trial on all issues would require the parties to address (at significant cost) a multitude of rectification possibilities, some of which would be made irrelevant by the court's findings on liability.[61]
Applegarth J granted the application. His Honour placed significant weight on the reality that the plaintiff's case on quantum was in a state of flux, as well as the potential for a split trial to facilitate settlement. His Honour concluded as follows:

[51]

[71] On balance, I consider that the interests of justice and doing justice to both parties favours ordering a separate trial on liability. That course carries the prospect of significant costs savings. Such a course will resolve liability (subject to any appeal on liability). By that time [the plaintiff airport's] quantum case will be clearer than it presently is or is likely to be for some substantial time until at least a contract for early rectification works is let and the program of works and their cost is assessed, pleaded and considered by [the defendant]. One apparent reason as to why the proceedings have not settled to date is because of uncertainty on issues of both liability and quantum. A separate trial on liability, preferably conducted in the first half of 2021, will remove one significant element of uncertainty and thereby help facilitate resolution of the Remaining Issues by settlement or a shortening of any quantum trial.

[72] Some factors weigh in favour of having a trial of all issues. However, with [the plaintiff airport's] quantum case in a state of flux, such a trial is unlikely to be ready for some substantial time. In my view, it is just and convenient to conduct a liability trial before then. The prospect of savings of time and costs, and also facilitating settlement, favours a separate trial on liability. These considerations, in my view, and the other matters relied upon by [the defendant] outweigh the risk that a separate trial will delay the conclusion of the proceeding as a whole and the other disadvantages to which [the plaintiff airport] points.

[73] The uncertainty injected in relation to quantum by the prospect of early rectification work and its significant implications for the preparation and conduct of a trial on quantum favour a separate trial on liability. It would be wasteful of costs and time to require [the defendant] to prepare evidence, including expert evidence, in the coming months to respond to [the plaintiff airport's] case on quantum as presently pleaded and formulated. That case is bound to change because of altered operations at the airport and the real prospect of early rectification work. The need to avoid wasted costs on quantum issues which are almost certain to change is a factor which strongly favours ordering a separate trial on liability.

[74] Overall, I conclude that it is just and convenient to order a separate trial on liability.

[62]

At the hearing, Senior Counsel for the AIG Defendants drew my attention to two recent decisions where an 'unconventional split' was sought, neither of which were granted. These decisions are Jinxin Inc v Aser Media Pte Ltd & Ors [2022] EWHC 2431 (Comm) (Deputy Judge Eggers KC) and Timeless Sunrise Pty Ltd v BigJ Enterprises (No 3) [2022] VSC 499 (Delany J).
Senior Counsel for the AIG Defendants placed emphasis on Jinxin to support the proposition that a court is unlikely to grant an unconventional split where the issues to be tried in the separate trials are 'connected or interlocked'.[70]
Jinxin is a decision of Deputy Judge Eggers KC sitting in the High Court of England and Wales. The claimant, Jinxin, brought claims against a number of defendants. Two of those defendants (supported by the other defendants) brought an application for a split trial - proposing that the proceedings be split into three separate trials, each dealing with specified issues.
Senior Counsel for the AIG Defendants described the categories of the split in Jinxin as 'unconventional'. The defendants sought to split the trial into, firstly, a trial to deal with the identification of representations made to Jinxin and their meaning to a reasonable representee, and whether Jinxin relied on the representation in the belief that it was true.[71] Then a second trial would be required, which would deal with whether or not the alleged representations were untrue, the knowledge and intention of the defendants, and the defendants' responsibility for the representations.[72] The final trial would deal with, if necessary, the question of remedies.[73]
The court ultimately refused the split trial application in Jinxin. In doing so, the court relied upon the considerations outlined by Hildyard J in Electrical Waste Recycling, an English authority to which I have earlier referred. Those considerations are:[74] first, whether the prospect that costs will be saved due to the findings made in the first trial rendering a second trial unnecessary, outweighs the likelihood of increased aggregate costs if a further trial is necessary. Second, weighing up the advantages and disadvantages in terms of trial preparation and management. Third, the likelihood that the split trial will impose unnecessary inconvenience and strain on witnesses who may be required in both trials. Fourth, whether a single trial dealing with all the issues will be excessively complex or place an undue burden on the judge hearing it. Fifth, whether a split could prejudice one or more of the parties. Sixth, is a clean split possible or is an appropriate split difficult to demarcate. Seventh, what weight to be given to the risk of duplication, delay and the disadvantage of a bifurcated appellate process. Eighth, what is the best course to ensure that the whole matter is adjudicated as fairly, quickly and efficiently as possible. Ninth, whether a split trial may encourage or assist mediation and/or settlement.
In dismissing the application, the court in Jinxin (at [32]) observed that 'such split trials may have unintended or unanticipated consequences, and therefore the Court must be astute before ordering such separate trials to take place'.[75] Senior Counsel for the AIG Defendants submitted that a key reason for the court's decision to dismiss the split trial application in Jinxin was that the issues the defendants were proposing to split were 'connected or interlocked'.[76] While I accept that Deputy Judge Eggers KC expanded heavily on the presence of connected or interlocked issues,[77] his Honour dismissed the application by weighing five other considerations, together with the issue of connectedness.[78]
His Honour found that: first, while the second trial's scope may be considerably narrowed, the case, nevertheless, had a very real possibility of a further trial. Second, significantly due to the interconnectedness of the issues, the witnesses who will be called in the first trial will undoubtedly be called at later trials. This created a duplication of evidence, difficult-to-draw boundaries as to what evidence these witnesses might give at each trial, and may be unfair to the witnesses to have to give evidence on the same issues with a not-de minimis amount of time in between trials.[79] Additionally, his Honour felt this could create an issue of prejudice as the court may make findings to a witness' credibility in one trial which may affect that witness' ability to give evidence in a further trial. Third, in the circumstances, the splitting of trials would not necessarily save the court or the parties from a complex trial.[80] Fourth, the issue of delay. His Honour found that if the first trial was not entirely dispositive, then splitting the trials will have the effect of delaying the second and third trials to a much later date than the one currently envisaged for the single trial. Further, that delay may be further exacerbated by the very real possibility of an appeal of the earlier decisions.[81] Fifth, due to the circumstances of the case, the ordering of split trials may create more difficulties than can be anticipated, and given there were already difficulties identified, there was no clear justification to order splitting the trial along the lines proposed by the defendants.[82]
There are obvious differences in the causes of action and facts which underpinned Jinxin, relative to the case at hand. Nonetheless, the arguments raised in Jinxin were, broadly speaking, similar to the arguments the parties in the hearing before me raised. For example, it was contended in Jinxin that there was a potential advantage to the split, which was that determining the liability would encourage the parties to settle. This argument was accepted by the Judge. Nevertheless, his Honour ultimately found that the concerns outweighed that advantage.[83]
Ultimately, there are parallels to be drawn from the approach adopted by the court in Jinxin. The factors relied upon by the court to dismiss the split application in that case are in my assessment, by and large, present in the current proceedings.
Senior Counsel for the AIG Defendants also drew my attention to Timeless Sunrise, a recent decision of the Victorian Supreme Court. That case involved an application by the plaintiffs to split their case at trial in relation to forgery allegations concerning mortgage transactions.[84] The court was asked to order an 'unconventional' split, albeit in a Protean Holdings[85] sense rather than a Tepko sense. The court ultimately refused the application given the fact and degree to which the issues the subject of the application were intertwined with other issues.[86] Delaney J found that it would be artificial and not conducive to the fair conduct of the trial to carve out a single issue from a whole series of inter-related issues.[87] As the case concerned a split in a Protean Holdings sense I do not consider the case is sufficiently relevant to the present applications before the court, and I will put that decision to one side.

[63]

In the detailed submissions filed by the parties, a number of features of these proceedings were highlighted as being variously supportive of the proposal to order separate trials, or as representing obstacles to such a course of action.
The parties focused their submissions on the orthodox issues which are identified in the leading authorities to which I have already referred. These included matters such as whether there would be any overlap between issues and the evidence, the perceived complexities associated with the quantum aspects of the plaintiff's claims, the potential for savings in trial time and costs, the risks of fragmentation arising from appeals, impact on settlement, and overall duration of the proceedings.
The plaintiff submitted that the applications should succeed having regard to a number of factors present in the case, as explained in some detail at [28] - [ 79] of the Plaintiff's Submissions. The plaintiff points to the demarcation between issues, the flow on impact from a resolution of the Substantive Issues prior to the trial on the Quantification Issues, through a significant narrowing of the issues between the parties. The plaintiff points to savings in trial time andthe use of judicial resources, as well as savings in legal costs for the parties. The plaintiff rejects any notion there would be any overlap between the documentary or oral evidence of the witnesses. The nature of expert evidence that will be led in respect of the two categories of issues will also be led by different experts in different disciplines. The plaintiff also submits that a trial on the substantive issues is likely to enhance the prospects of the parties resolving or narrowing the quantification issues and, potentially, of course, settling it altogether.[88]
The AIG Defendants and Mitsui Sumitomo adopted a uniform position in the CAR Proceedings, and Mitsui also adopted that position for the purposes of the EAR Proceedings.[89] The defendants remain wholly unpersuaded that the plaintiff's approach involves a clear demarcation between the issues of liability and quantum, and point to this as a significant Achilles heel in the Separate Trial Applications.
The defendants rightly note the proceedings are at an early stage, and so they contend the plaintiff's assertions as to the likely savings as to costs and time have no sound evidential foundation. The defendants point to the risk of an appeal fragmenting the proceedings, which while always a factor to be considered in a split trial application, is said by the defendants to be greater than usual given the amount at stake in these proceedings. The defendants do not share the plaintiff's confidence as to the prospect of settlement being enhanced after the first trial, at least in certain scenarios.[90]
In general terms, the defendants submit that the state of the proceedings and the material relied upon by the plaintiff in support of the Separate Trial Applications 'come nowhere near providing the Court with the necessary comfort that the utility, efficiency and economy of the proposed separate trials is beyond question, and that such separation will not create more difficulties than it solves'.[91]
As an alternative position, the AIG Defendants submitted that, if the court was prepared to entertain separate trials, the present application is nonetheless premature and 'any proposed separate trials should only be considered after Inpex serves its lay and expert evidence on the Substantive Issues, that being a step which Inpex accepts it must take in any event' and 'this will allow the Court to consider the issue, including the risks of any separate trials, on a more informed basis'.[92]
Mitsui Sumitomo submitted that a splitting of the trial on the terms proposed by the plaintiff would not serve to simply separate the issues concerning the plaintiff's entitlement to indemnity from the quantification of that entitlement.[93] Rather, according to Mitsui Sumitomo, it would postpone the determination of issues that are fundamental to establishing that an indemnity is available under the two policies.
Further, Mitsui Sumitomo contends there is a 'significant risk that issues will arise in the second phase of the proposed split hearing that may have been relevant in determining issues in the first phase hearing' and 'the cost, delay and inconvenience of two trials in lieu of one is not offset by the benefit that frequently arises in cases of this kind, namely the prospect of the parties reaching agreement on quantum thereby obviating the need for a determination of those issues'.[94]
My analysis of the salient features of the proceedings, insofar as they are relevant to the Separate Trial Applications, is set out below. Ahead of that, I should address the plaintiff's asserted rationale for the bringing of these applications. That rationale requires close scrutiny and whether that rationale is justified seems to me to be an important, if not pivotal issue, upon which the success of these applications turn.

[64]

The presence within the plaintiff's claims of multiple forms of damage is central to the Separate Trial Applications which it now advances. The plaintiff submits that it is simply not practicable to deal with the Quantification Issues in advance of a determination of the Substantive Issues because a single trial would require the parties to address a multitude of permutations of damage, which it says (and which its engaged expert supports) is impracticable and unachievable.[95]
Even if this task was attempted, the plaintiff submits it would be unreasonably costly and inefficient, and give rise to a very substantial risk that such work could be redundant if it proved not to be relevant to the court's findings on the Substantive Issues in any event.[96]
The plaintiff urges the court to accede to the Separate Trial Applications in order to overcome the difficulty and complexity of quantifying the plaintiff's entitlement under the CAR Policy and the EAR Policy. Otherwise, the plaintiff says that the task that would confront the parties (and their experts) and the court would be unmanageable in its breadth and complexity, as it would require the parties to deliver evidence (and require the experts to express opinions) on an 'indeterminate number of permutations'.[97]
The plaintiff explains that the task of attempting to quantify permutations that may or may not arise from the court's findings will result in disproportionate time and cost to be expended by all parties, and the court, including on matters that will ultimately be rendered unnecessary. All of this can be resolved, according to the plaintiff, if the trials are split because the court's decision on the Substantive Issues will mean there is only one permutation for each category of damage.[98]
Through Mr Jenaway, the plaintiff's quantum expert has expressed views in relation to the task that confronts him in this matter. The expert is Mr John Mullen, who is a chartered quantity surveyor and chartered civil engineering surveyor, with over 42 years' experience in the construction industry.[99] The foundation for Mr Mullen's opinions, apart from of course his own many years of experience and his experience in a recent confidential matter, is the instructions he has been given by the plaintiff's solicitors as to the nature of the evidence he would be instructed to prepare.[100] That is to be expected, but it does mean I should view his opinions giving appropriate regard to the criticisms raised by the defendants concerning the plaintiff's approach on these applications, which I have mentioned below.
In any event, Mr Mullen asserts that it would not be possible for him to prepare a comprehensive expert report that could reliably quantify the plaintiff's potential entitlement for each of the potential permutations of that entitlement, under the insurance policies.[101] The task of preparing the quantum evidence for variances for all possible scenarios would be unmanageable and in effect impossible, in his view.[102] Mr Mullen points to the enormous number of Lines of Piping and Equipment on the Onshore Facility (around 30,000) and, in the absence of judicial findings as to which of them are damaged, when that occurred, what remediation is required, and the time at which the cost of remediation needs to be assessed, he considers he would need to determine an estimated cost for each Line. Mr Mullen says he is unable to determine a universal cost for remediation. He says he may be able to prepare an estimate of direct costs, but he cannot reliably calculate indirect costs.[103]
Mr Mullen has indicated that, if the proceedings are not separated, a quantum report prepared on the basis of certain assumptions and a limited number of permutations could be prepared but would require materially in excess of 12 months to complete. That task would consume significant resources. Some of the report may prove to be redundant, depending on the findings.[104] If the proceedings were split, Mr Mullen considers the report would take materially less than 12 months and be directly relevant in the sense it would reflect the determinations of the court on the Substantive Issues.[105]
The defendants doubt whether it can be said there are an infinite number of permutations as to damage and the scope of remediation works, as has been submitted by Inpex Operations, and thus strongly doubt there are difficulties arising from this uncertainty as is contended by the plaintiff.[106] The 'recurrent theme' in the plaintiff's submissions that there are an indeterminate number of outcomes which will need to be addressed by the quantum evidence is characterised by the AIG Defendants as 'abstract and far-fetched'.[107]
I accept the plaintiff will encounter significant difficulties in preparing its quantum evidence if it proceeds in the manner it has proposed. I accept that the case as pleaded is undoubtedly complex. There are numerous forms of damage pleaded by the plaintiff, which are said to have arisen within the context of an immense industrial structure, which needs to be assessed against the backdrop of the detailed language of the insurance policy provisions. Mr Mullen has expressed views which suggest that significant costs and resources will be expended, over a lengthy period, to prepare quantum evidence in a single trial scenario, even on the basis of certain assumptions and certain permutations.
However, I am unable to accept, on the material before me, that it is inevitable, in a single trial scenario, that the plaintiff will need to prepare quantum evidence which traverses an indeterminate number of outcomes and permutations. This approach presumes that further work cannot now be undertaken by the plaintiff to refine the claims for damage (and the remediation costs) which it seeks. That work should, with respect, not be undertaken only after a series of findings and conclusions are made by the court on the Substantive Issues. Further, it is not uncommon for large scale claims to be approached on the basis that damages are sought in respect of a number of heads (and quantum preparation is undertaken for that purpose), only some of which ultimately may prove to be compensable. Where possible, wasted costs in litigation should be minimised from a case management perspective, but it cannot always be wholly avoided. Logically, it appears to me there is no reason why the plaintiff cannot now determine the costs of the remediation that are required to be undertaken on the various Lines of Piping and Equipment. This includes the costs of the pre-damage hypothetical remedy which, on the plaintiff's construction, is required as part of the LEG 2/96 Exclusion calculus.[108] The plaintiff and JKC have made detailed claims against their insurance policies and have now pleaded out lengthy statements of claim to advance those claims, which seek indemnity against damage to insured property, all of which presupposes that the plaintiff has a sufficient understanding of the remediation which is required, and that the plaintiff is able to identify what it says is the comparative cost (hypothetical or actual) required as part of the analysis inherent in the application of the LEG 2/96 Exclusion or the LEG 3/06 Exclusion.
So, it seems to me that greater work can be undertaken by the plaintiff at present to better clarify and assess the remediation work it is required to undertake on the Onshore Facility, and the estimated costs of doing so. I do not accept that there is merely a stark choice for the court, between an inefficient and wholly unmanageable piece of litigation, on the one hand, and a decision to accede to the split trial applications proposed by the plaintiff, on the other. By having the plaintiff undertake further work on the remediation issues and costs, the impossible and unmanageable task of preparing the quantum evidence (as the plaintiff puts it) may well become possible and manageable. As McKechnie J explained in Carlo Nobili:

[66]

I consider the plaintiff's suggested approach to splitting these proceedings in the manner proposed is something of a blunt instrument to address the issue at hand, and to resolve the difficulties which have been identified. In my view, further progress of the proceedings, and the undertaking of further work on the part of the plaintiff as just described, together with additional active steps in the proceedings, may well bring the issues into clearer focus, both from the parties' perspective and from the court's perspective.
By way of example, I have earlier referred to the unanswered but detailed requests for further particulars which were served on the plaintiff by the AIG Defendants in October 2022.[110] Those requests seek particulars of the parts of the Piping and Equipment which are presently pleaded in general terms by the plaintiff, and details of the various heads of damage which have been pleaded by the plaintiff. It is not clear to me why the parties have not advanced conferral on these requests ahead of the hearing of the Separate Trial Applications. Although I recognise that those applications were filed before the requests were issued, there is no obstacle to these matters all being progressed in parallel.
In addition to the provision of particulars, I note the parties have not concluded the discovery phase of the litigation. The parties were engaging in conferral as to the categories of discovery, at least as at late November 2022. The parties have, it would seem, exchanged initial categories of discovery. The continuation and completion of the discovery process may or may not require active assistance from the court to resolve insoluble issues. The communications exchanged in November 2022 leave me with the preliminary impression that the parties may not have been able to convince each other of the appropriateness of their respective categories. At all events, as matters stand, the defendant insurers do not have complete insight at present as to the relevant documentary material held by the plaintiff (bearing in mind the plaintiff is likely to be the repository of a significant portion of the documents relevant to the proceedings). Clearly enough, the provision of discovery (in conjunction with the provision of further particulars by the parties) can assist the solicitors on the record (and counsel) to better understand the matters in issue and the points of strength and weakness of the parties' positions, including as to matters of quantum.
A further example of a step which may ameliorate some of the quantum difficulties to which the plaintiff refers is conferral between the parties' quantum experts. Traditionally, the process of conferral between engaged experts in commercial litigation takes place in earnest only once those experts have prepared and exchanged their reports. At that stage, the respective experts have before them the opinions of their counterparts and conferral can be undertaken to identify areas of agreement and remaining areas of dispute. There is no obstacle in principle, however, particularly in a large piece of litigation such as the present, for the parties to have their respective experts in similar fields of discipline, confer in good faith with a view to identifying, if possible, methods by which the complex expert issues may be narrowed or rendered more manageable, prior to formal reports being finalised. If necessary, this can be undertaken under the auspices of a court-approved agenda. It does not appear that the parties in the present proceedings have considered such an approach as yet.
I venture another example. The use of a court appointed assessor or a referee as contemplated by Order 35 RSC may be advantageous in a case such as the present, and offer a more focused solution. As with a split trial application, the question of the appropriateness of appointing an assessor or referee requires careful consideration.
Returning to the evidentiary foundations for the present applications, I should say something about the nature of the expert evidence which was presented on these applications. Whilst I have the views of Mr Mullen, the plaintiff's engaged expert, before me on these applications, those views are expressed in very broad terms as to the preparation of the quantum evidence, and the difficulties therein. As is of course common in interlocutory applications, that evidence has not been tested by cross-examination. I do not have any expert evidence to assist me to understand the underlying technical remediation issues. In this regard, I accept the submissions of the AIG Defendants that it does not follow that each form of damage alleged by the plaintiffs necessarily requires that each form of potential remediation is required. For my part, I am unable to simply draw that inference from the materials available to me at present.
Even if I accepted the entirety of the premise of the plaintiff in bringing these Separate Trial Applications, I am left in some considerable doubt as to whether the formulation of the Substantive Issues as drafted by the plaintiff would avoid the difficulties about which it complains. The AIG Defendants have drawn my attention to the wording of issues (c) and (e) in the Substantive Issues in this regard. I would add issue (f) to that list. These are issues to be determined at the first trial, on the plaintiff's proposal. I have described these issues earlier in these reasons, and they are extracted in Attachment A. Issue (c) invites the court to assess 'whether each item of Insured Property has suffered Damage...and, if so, by reason of what mechanism?'. Issue (e) requires the court to determine the 'type of remediation [required] for each Damage mechanism on each item of Insured Property', 'in respect of any Damage warranting quantification'. Issue (f) employs similar language. It therefore appears likely that, even on the split trial proposal, the plaintiff will need to prepare some level of detailed evidence as to the scope of the remediation for each of the forms of damage about which it complains.
So, as matters stand, I am unable to accept the basal proposition advanced by the plaintiff which underpins the Separate Trial Applications, namely that it is inevitable the plaintiff will need to prepare quantum evidence which traverses an indeterminate number of outcomes and permutations if there is a single trial, or that the proposal necessarily avoids or sufficiently addresses the perceived problem. Further, as explained above, it is far from clear to me that the split trial proposal is a necessary procedural solution at this stage of the proceedings, or that the proposal will have the evident benefits which the plaintiff asserts will flow.
I turn now to examine a number of the additional factors relied upon by the plaintiff in support of the split trial proposal.

[67]

The plaintiff submits that, even though the pleadings in the two proceedings raised a number of complicated factual and legal issues, there is nonetheless a clear demarcation between the Substantive Issues and the Quantification Issues which it has expressly defined in the Separate Trial Applications.[111]
The defendants submit that the demarcation proposed by the plaintiff is contentious and point in particular to the presence of the LEG 2/96 Exclusion, the LEG 3/06 Exclusion, and the Basis of Settlement as providing compelling reasons why the proposed demarcation is not workable.[112]
As can be seen from the foregoing, the split propounded by the plaintiff is not a strict division of the case as between liability and quantum. It is unconventional.[113] There are issues of what might be described as liability and quantum that would need to be determined in both proposed trials. Moreover, there are issues or subject matter which will arise in the first trial which would also fall to again be addressed, at least in some respects, in the second trial.
I am particularly concerned as to the impact a split trial might have on the LEG 2/96 Exclusion and the LEG 3/06 Exclusion which are pleaded and relied upon by the defendants in the proceedings. These exclusion clauses are pleaded in respect of most, if not all, of the plaintiff's claims. As can be seen from the description of the Substantive Issues and the Quantification Issues in Attachments A and B to these reasons, these exclusion clauses also fall to be considered in both trials.[114]
The plaintiff rejects the notion that the presence of these exclusions renders the separate trial proposal unworkable and inappropriate and, indeed, consider their presence to be powerful facts in favour of a split.[115] In general terms, the plaintiff submits that it is possible for the quantification aspects inherent in an application of the LEG 2/96 Exclusion to be undertaken after it is established that damage has occurred to some insured property, after the required remedial solution that needs quantification has been identified, and after the hypothetical method of replacement or rectification of the insured property has been identified.[116]
In my view, there are two primary reasons why the split trial proposal should not be entertained insofar as the LEG 2/96 Exclusion and the LEG 3/06 Exclusion are concerned.
First, the parties are in heated dispute as to the proper construction and effect of the LEG 2/96 Exclusion and the LEG 3/06 Exclusion. That much is apparent from the submissions filed for the purposes of the Separate Trial Applications. The parties appear to view the exclusion clauses through entirely different prisms. It is not appropriate that I make any observations at this stage as to the competing constructions which have been advanced. As I have noted, these exclusions are model clauses, yet appear not to have attracted a significant body of authoritative jurisprudence as to their operation. This court will ultimately be called upon to construe these exclusion clauses in circumstances in which their proper construction is something of a greenfield site.
That means the court should proceed cautiously, given the interpretation and application of the clauses may have significance beyond the instant litigation and the present parties. The court must also undertake that task with full regard to the orthodox principles which ought to be applied in construing commercial instruments, such as complex insurance policies. While we are dealing with model clauses, it does not follow that their construction in the present case, in these particular insurance policies, will be undertaken in an evidential vacuum. It will be necessary to interpret the provisions with due attention to the commercial circumstances which the CAR Policy and the EAR Policy address, and the objects they are intended to secure. It is well acknowledged that regard to external events, circumstances or things may be necessary in this process. This may be required to identify the commercial purposes or objects of the contract (by reference to the genesis of the transaction, the background, the context and the market in which the parties are operating) or to determine the proper construction where there is constructional choice due to ambiguity.[117]
All of the foregoing strongly militates in favour of an approach in which the proper construction and application of the LEG 2/96 Exclusion and the LEG 3/06 Exclusion (in their entirety) are determined at one trial, and not across two trials. Even though the plaintiff submits that the second trial would focus on quantification issues, the splitting of the case across two trials will require the court to address the construction of these exclusions on two occasions with the potential for different evidentiary circumstances presented on each occasion. That creates a significant risk, in my view, that the process of construing these important exclusion clauses will miscarry.
Second, the duplication of issues concerning the exclusions across both trials carries with it the real risk of an overlap in the evidence and witnesses which will be required. This may also reduce the expected savings of time and costs to which the plaintiff points, as well as negatively impact the likelihood of an outcome from the first trial increasing the prospects of settlement (in that a full application of the exclusions might not be known until the conclusion of the second trial).
By virtue of paragraph (e)(iii) of the proposed Substantive Issues, it is intended that the first trial would identify the nature of the remediation required immediately before the damage occurred (for the purposes of the LEG 2/96 Exclusion, with a similar task being required for the LEG 3/06 Exclusion). The determination of the cost of that remediation is then deferred to the second trial, as is apparent from paragraph (a)(ii) of the proposed Quantification Issues. That is, the first trial would not involve a quantification of the costs of the remediation, but requires the identification of the remediation.
In this regard, I see substantial force in the submission advanced by the AIG Defendants to the effect there may be considerable overlap in the evidence or witnesses relating to what remediation was required immediately before the damage occurred and the evidence required to be adduced in the second trial as to the cost of that remediation and the evidence as to the costs rendered necessary by the defects.[118]
The overlap in evidence, and the possibility of the same witnesses (lay and expert) being required to give evidence at both trial, is highlighted by the AIG Defendants in their submissions.[119] I accept the criticisms which are advanced by the AIG Defendants. While Mr Jenaway, through his affidavit, seeks to assist the court to better understand the issues which may arise, the conclusions which are expressed as to matters of overlapping evidence, and as to the absence of credit issues arising in this matter, are bare conclusions which lack adequate supporting detail.[120] Senior Counsel for the plaintiff sought to deal with the witness overlap issue through an undertaking to the court to the effect that, if there is a separation of the trials, the plaintiff will not, except by leave of the court, call a person to give evidence for the plaintiff in the second trial, if that same person was called and gave evidence in the first trial.[121] As I indicated during the hearing, I regard that approach as somewhat novel. It also does not eradicate the witness overlap risk, given the qualification to the proposed undertaking, as was noted by Senior Counsel for the AIG Defendants.[122]
As I have elsewhere noted in these reasons, the proceedings are at a relatively early stage. These issues may develop further as the matter progresses, and the parties and the court may have greater insight into them as this occurs. But I cannot form the requisite level of confidence on these issues based on the state of the affidavit material as it exists.

[68]

In the context of such large scale litigation as the present, involving well-resourced parties, I am not persuaded that any savings in the parties' legal costs generated by a split trial process should be seen by the court as a powerful factor in favour of adopting that approach. It is a relevant factor - but not powerful. Savings in trial time and reduction in the use of judicial resources present as far more important factors in the current context, given the impact of trial time and absorption of judicial resources in terms of other users of the public court system.
From a judicial perspective, there is a burden on the trial judge of preparing for two separate trials and undertaking the detailed and time consuming task of preparing two detailed sets of reasons. Whether that can fairly be balanced against the task of preparing for one longer trial and preparing only one, more detailed and lengthier, set of reasons, is a difficult matter to assess. On balance, this aspect is probably a neutral factor in the equation.
The plaintiff has undertaken a comparative analysis which appears to show that there may be an overall shortening of the trial length by around 4 weeks under the separate trial scenario, assuming both trials were required, and around 7 weeks if the second trial was ultimately not required.[123] If both trials are required, the net cost savings are likely to be modest at best given the need for the parties to get-up for the second trial, but the saving in overall trial time is a positive factor.[124]
The AIG Defendants describe the estimates and analysis advanced by the plaintiff as to trial length and costs as having an unstable evidentiary foundation, and submit that it is impossible at this stage to realistically estimate such matters.[125] For my part, I have approached this aspect of the applications without putting too much weight on the particular estimates as to time and cost which have been made. It is early in the proceedings, at least in the sense of being able to estimate such matters with precision, and in any event the estimation of such matters is a notoriously difficult exercise which may be impacted by many variables.
I therefore approach this aspect on the basis that there is at least a likelihood that the splitting of the trials in the manner proposed by the plaintiff would shorten the overall time required for trial, but that the net impact on the parties' respective legal costs is likely to be modest, unless of course the first trial obviates the necessity for any further trial.
This last mentioned issue (i.e., whether there will be a need for a second trial) is closely related to the question of settlement of the proceedings, which is the next matter I wish to address.

[69]

The parties submit, and I accept, that as a matter of principle the possibility that separate trials will increase the prospects of settlement of the overall proceedings is relevant to the exercise of the discretion which the plaintiff invites this court to exercise on these applications. I have referred to the authorities on this issue at [73] of these reasons. However, the parties have adopted diametrically opposed views as to whether a separation of the issues in the manner proposed by the plaintiff will advance settlement of the present dispute.
The plaintiff submits that, if the Substantive Issues are tried separately and the court were to make a determination as to the particular damage and the extent of the remediation for which the defendants are liable (if any), this would 'vastly narrow the field of litigious controversy and substantially enhance the prospect of the settlement of the balance of the litigation based on a meaningful consideration by the parties of quantum and the financial stake involved'.[126] Mr Jenaway has sworn to his belief in this proposition.[127]
The plaintiff submits, as an alternative, that a determination of the damage and remediation at the first trial would 'strengthen the prospects of the parties agreeing upon many items of quantum, thereby further reducing the number of quantum determinations required at the second trial'.[128]
In contrast, the defendants submit that a separation of the issues will not only not lead to settlement, but will actually inhibit it.[129] Mr Chylek has sworn to his belief in this proposition, based on his experience in settlement negotiations in insurance disputes in particular.[130] I accept his evidence in this regard.
In further support of this submission, I have been referred to evidence from a senior representative at AIG Australia Ltd (Ms Simone Mealyea), who would lead the settlement negotiation for the AIG Defendants.[131] While Ms Mealyea would participate in the mediation on behalf of the AIG Defendants and would be authorised to a limit to negotiate on all of their behalf, she recognises that individual insurers would represent their own interests and 'will inevitably want to participate in any mediation'.[132]
In simple terms, Ms Mealyea, through Mr Chylek, says that the prospects of resolution would not be advanced if issues of quantum remain at large. What is the basis for that assertion? Ms Mealyea explains that, from the perspective of the AIG Defendants and in order for those insurers to have any meaningful settlement discussions, it is important that the plaintiff first serve its quantum evidence and the AIG Defendants then have the opportunity to test that evidence, including by seeking their own expert opinions.[133]
Ms Mealyea says that the AIG Defendants would not wish to participate in any mediation unless and until the plaintiff has served its evidence as just explained. Ms Mealyea states that the AIG Defendants would not agree to any voluntary mediation and would not consent to any court-ordered mediation until this quantum evidence had been served.[134]
If the parties were nonetheless ordered by the court to mediate, Ms Mealyea considers the prospects of success would be very low as 'without sufficient material from the plaintiff regarding quantum, there would be an unresolvable question as to who holds the relevant authority within AIG under delegation to participate in any settlement discussions'.[135] Further, it would be highly unlikely if not impossible, according to Ms Mealyea, for individual insurers to assess their exposure to a claim of this type and engage in good faith negotiations when the plaintiff has not quantified its claim.[136]
The AIG Defendants submit that Ms Mealyea's approach accords with the commercial reality of negotiations which would occur in litigation at any level and especially where the amount sought by a plaintiff is in the magnitude of hundreds of millions of dollars, if not billions.[137]
In my opinion, the court should be slow to criticise or, indeed, reject, the competing contentions advanced by the parties as to the impact of a separation of the issues on the prospects of settlement. Naturally, different parties will approach settlement according to their own particular interests, viewpoints and experience, although I expect the commercial parties involved in the current litigation would ordinarily act in an economically rational manner. Examining the issue in an objective manner, as I think I must, my impression is that the obstacles to early resolution which the defendants highlight (in a separate trial scenario) are objectively valid. That impression is fortified by the judicial observations to which I have earlier referred, in cases such as Landsdale and Daimler AG.
The amounts which are in issue in this litigation are significant, by any measure. In my view, the insurers insistence that resolution is unlikely to be achieved until the plaintiff's quantum evidence is served, and the authority limits applicable for the insurers' representatives are known, is understandable in this context. The resolution of a number of issues at the first trial may provoke the parties into a narrowing of issues for the second trial. The plaintiff makes this point as an alternative submission.[138] I do not discount that possibility. That is quite a different matter to resolution of the litigation through settlement, however.

[73]

The orthodox position is that all issues of fact and law in dispute in an action should be tried together. There are compelling reasons for this orthodox approach. The plaintiff, through the current applications, invite this court to exercise the discretion in either Order 32 r 4 or r 5 RSC to order that separate trials on the Substantive Issues and the Quantification Issues be undertaken.
In my view, the plaintiff has not discharged the burden of persuading the court that it should exercise the discretion to order separate trials.
I have firmly in mind the words of warning from the High Court in Tepko that applications of the present nature must be approached in a careful and considered manner, and I should be watchful of pursuing a deceptively attractive short-cut that ultimately serves to complicate and lengthen proceedings. The apparent benefits of a separate trial of issues can prove to be illusory. It is a course that can cause the very delay, expense and uncertainty it was intended to avoid.
The present litigation involves a series of complex claims for indemnity under detailed policies of insurance, concerning an immense liquified natural gas facility. The enormity of the claims and the litigation process which the plaintiff has initiated is, naturally enough, no preclusion to an application for a split trial. Indeed, large and complex cases are ones where procedural applications such as the present may well produce significant advantages in terms of efficiency and case management. It must be undertaken, however, only where the utility, economy, and fairness to the parties of such an approach are beyond question, and where to do so can be said to be in the interests of justice in a broader sense. In my view, it cannot be said, at least at present, that such advantages are beyond question or that it would be in the interests of justice to split the litigation.
As I have explained, the rationale advanced by the plaintiff for these applications is not one that I accept. I am unable to accept that it is inevitable, in a single trial scenario, that the plaintiff will need to prepare quantum evidence which traverses an indeterminate number of outcomes and permutations. The evidentiary foundation which underpins this core aspect of the plaintiff's applications is not sufficiently strong enough in my view to permit me to safely reach the conclusion contended for by the plaintiff. It seems to me that greater work can and should be undertaken by the plaintiff at present to better clarify and assess the remediation work it is required to undertake on the Onshore Facility, and the estimated costs of doing so (including, on the plaintiff's construction, the hypothetical costs required by the LEG 2/06 Exclusion and the actual cost required by the LEG 3/06 Exclusion). By undertaking that work, the impossible and unmanageable task of preparing the quantum evidence (as the plaintiff puts it) may well become possible and manageable. At least in part, the separate trial proposal developed by the plaintiff would operate as some form of 'filtering' mechanism of the plaintiff's claims. That is not the role of the separate question process.[141]
I am also not satisfied that there is a clear line of demarcation between the issues required to be addressed in the two trials which are contemplated. The separation of the issues in the CAR Proceedings and in the EAR Proceedings as is presently proposed by the plaintiff is somewhat unconventional. In this regard, I am particularly concerned as to the necessity to address matters of construction and application connected with the LEG 2/96 Exclusion and the LEG 3/06 Exclusion in both trials. The defendants have pleaded reliance on these exclusions in a manner which makes them central to the determination of the proceedings. Such a central set of issues should be determined in one trial, particularly given that construction issues concerning these model clauses loom large in the proceedings.
I am also unpersuaded that a separation of the trials is likely to bring the benefit of early resolution to the proceedings, or at least not to the degree submitted by the plaintiff, for the reasons I have explained. I have also taken into account the overall delay in the resolution of the proceedings which would likely result from a separation of the trials (assuming the second trial is required).
Ultimately, it seems to me the plaintiff's suggested approach that the issues in the proceedings should be split is too blunt an instrument for the court to wield at this stage. There are other mechanisms available to the parties under the Rules to assist with the task of managing the litigation in a just, efficient, timely and cost-effective manner consistently with the overriding goals of case management enshrined in Order 1 rr 4A and 4B RSC.
For the foregoing reasons, I am unpersuaded that the utility, economy and fairness of the separate trials proposed by the plaintiff in these proceedings has been clearly made out. I will dismiss the applications for separate trials which have been filed by the plaintiffs in the CAR Proceedings and in the EAR Proceedings. I will hear from the parties as to the appropriate costs orders which should follow from these orders.

[74]

(a) Whether JKC's assignment of its claims to the plaintiff is valid and enforceable?

(b) Whether the plaintiff is permitted to claim and recover under the CAR Policy in its capacity as an insured or an assignee (and under the EAR Policy)?

(c) Whether each item of Insured Property has suffered Damage, as that term is defined in the CAR Policy (and the EAR Policy) and, if so, by reason of what mechanism?

(d) In respect of any Damage:

(i) whether the Damage is fortuitous;

(ii) whether and when the Damage occurred and commenced during the insurance period under the CAR Policy (and the EAR Policy);

(iii) whether the Damage is excluded under Exclusion 3.2 of the CAR Policy (which is the 'Wear and Tear' exclusion), pleaded by the AIG Defendants and Mitsui;

(iv) the impact of statutory time bars on the plaintiff's claim; and

(v) whether, and to what extent, the plaintiff failed to mitigate its loss in respect of the Damage.

(e) In respect of any Damage warranting quantification, and for the purposes of any such quantification, what type of remediation is required (and thus is to be the basis for quantification) for each Damage mechanism on each item of Insured Property, including:

(i) the nature and extent of remediation;

(ii) the timing and circumstances of the remediation (including whether it can be performed over an extended period of years, or otherwise); and

(iii) for the purposes of the LEG 2 Exclusion in the CAR Proceedings, where Damage occurred to any portion of the Insured Property containing any defect of material, workmanship, design, plan or specification, the remediation by way of replacement or rectification (including its nature and extent) that was required immediately before the Damage occurred (and similarly for the LEG3 Exclusion in the EAR Proceedings).

(f) In respect of any Damage warranting quantification, and for the purposes of any such quantification, whether or not such Damage was part of an occurrence or series of occurrences consequent upon or attributable to one source or original cause in common with other instances of Damage to Insured Property.