Abstract

Article

Multiplicity of Causes relating to an Exclusion

If there are two or more causes, only one of which falls within an exclusion, the policy will generally not respond: Wayne Tank & Pump Co Ltd v Employers Liability Assurance Corporation Ltd [1974] QB 57; McCarthy v St Paul International Insurance Co Ltd [2007] FCAFC 28; (2007) 157 FCR 402 at 429-438 [88]- [115]. In some circumstances there may be a distinction between a cause in the sense that physical harm was occasioned by or happened through the existence of a phenomenon, and the reason for the phenomenon’s existence. For example, contamination may be a condition or it may be a process. The mere fact that the damage can be described as contamination does not preclude contamination also being the process by which the damage was caused.  Gunns Forest Products Ltd v North Insurances Pty Ltd [2006] VSCA 105; (2006) 14 ANZ Insurance Cases 61-691.

Calderbank v Calderbank [1976] Fam 93.

If a not insignificant argument could be advanced in relation to the critical issue, an application for an order may be refused.

Corporate Knowledge

corporate knowledge once obtained is not lost by the departure of the officer or employee whose knowledge is attributed to the company (Fightvision Pty Ltd v Onisforou (1999) 47 NSWLR 473; [1999] NSWCA 323 at [244]); Commonwealth Steel Company Limited v BHP Billiton Marine & General Insurance Limited [2018] NSWCA 242.

Extrinsic Materials

Extrinsic materials maybe used to establish objective background facts known to both parties and identify the subject matter of the provison if they do not merely establish the actual subjective intentions and expectations of the parties. Codelfa Construction Pty Ltd v State Rail Authority of NSW at 352; Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd at [50]. Extrinsic circumstances relating to negotiations as to the terms of the contract can be used to show the commercial aim or objective of the provision (Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7 at [35]; Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104; [2015] HCA 37 at [46]- [51]; Victoria v Tatts Group Ltd [2016] HCA 5; (2016) 90 ALJR 392 at [51]); Partenreederei M/S Karen Oltmann v Scarsdale Shipping Co Ltd (The Karen Oltmann) [1976] 2 Lloyd’s LR 708 at 712, for example, that the captive insurer and the insured knew that the reinsurers required the deductible rather than the amount of the cover to be indexed in order to seccure commercial rates of reinsurance premium.

If the parties have constantly used an expressionto refer toa particular matter, it may be inferred in the event of ambiguity that by the ambiguous expression they were referring to the same matter. Shore v Wilson (1842) 9 Cl & Fin 355 at 552, 556; 8 ER 450, 528-529; Macdonald v Longbottom [1859] EngR 635; (1857) 1 El & El 977; 120 ER 1177 at 983-984; 1179; Prenn v Simmonds [1971] 1 WLR 1381 at 1383-1384; Codelfa Constructions Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 at 348-350; B & B Constructions (Aust) Pty Ltd v Brian A Cheeseman & Associates Pty Ltd (1994) 35 NSWLR 227 at 235, 236). For exxample,it is justified upon the basis that in their dealings the parties used the expression in one sense only. Commonwealth Steel Company Limited v BHP Billiton Marine & General Insurance Limited [2018] NSWCA 242.