Abstract

Ín Respect of' - 'For' - Separation of Issues

Article

‘In Respect of’ and ‘For’

 

In England, the expression, ‘in respect of’ property damage was held to mean ‘for’ property damage and not merely ‘caused by’, ‘consequential upon’ or ‘in connection with’, and was limited to liability to the owner or lessee of the damaged property: Tesco Stores Ltd v Constable [2008] EWCA Civ 362. In Australia, the opposite construction obtains, and the expression could apply to a claim for economic loss if it was sufficiently causally connected to property damage, the money payments having as their basis physical damage to tangible property, that is, on account of it: Siegwerk Australia Pty Ltd (in liq) v Nuplex Industries (Aust) Pty Ltd [2013] FCAFC 130; Downer EDI Rail Pty Ltd v John Holland Pty Ltd; John Holland Pty Ltd v QBE Insurance (Australia) Ltd (No 5) [2018] NSWSC 326. With respect, this is plainly consistent with the broad interpretation which should be given to the nexus, particularly when it is employed in an insuring clause.

 

If  the nexus uses the expression ‘for’, such consequential damage would not be encompassed in the cover: Downer EDI Rail Pty Ltd (supra).

 

Separation of Issues

 

In Onley v Catlin Syndicate Ltd as the Underwriting Member of Lloyd's Syndicate 2003 [2018] FCA 370, the Court made an order for the hearing, by a specially convened Full Court and based on agreed facts, of issues of non-disclosure and utmost good faith on the insurer’s part in respect of indemnity for costs of the defence of a forthcoming criminal trial of a policyholder.