Welcome to our General Insurance Insights Newsletter, bringing you the latest case notes on key judgments from February and March 2025 affecting general insurers in Australia.
Spotless Facility Services Pty Ltd v Victorian WorkCover Authority [2025] VSCA 50
This case involved an appeal from the decision of the Victorian Supreme Court that was summarised in the May 2024 edition of this newsletter: May 2024 newsletter.
The worker was the property manager of Geelong Grammar School. The applicant was contracted to provide catering and cleaning services.
In 2016, the worker slipped on a liquid in the main dining hall and fell heavily, suffering an injury to his cervical spine. The worker alleged that he slipped due to spilt liquid (i.e. soup) on the dining hall floor. The worker’s damages claim settled. The respondent issued recovery proceedings under s369 of the Workplace Injury Rehabilitation and Compensation Act 2013 against the applicant. At first instance, the trial judge found that the applicant’s (reactive) system of cleaning was insufficient and that it should have had a system of continuous inspection, which, if implemented, would have averted the incident.
The applicant sought leave to appeal on various grounds. The Court of Appeal rejected those grounds pertaining to the breach of the applicant’s duty of care, endorsing the trial judge’s view that the relevant risk of injury to a person in the dining hall during luncheon service was patent and, therefore, the applicant should reasonably have had a system that involved ‘movement to observe all areas‘.
However, the Court of Appeal disagreed with the trial judge’s analysis on causation. In doing so, it expressly rejected that finding that the mere fact the incident occurred 90 minutes into a 2.5 hour service and there was an absence of any systemic inspections during that period, meant the applicant’s negligence was a probable cause of the worker’s injuries. Whilst it reiterated there was no need to prove exactly when the spillage occurred and endorsed the balance of probabilities test in Strong v Woolworths (i.e. whether, on the balance of probabilities, the spillage had been on the floor long enough that a system of continuous inspection would have led to it being identified and removed), it also distinguished the facts in that case from those in the present one. In particular, it was not equally probable that the spillage occurred at any time on the morning of the incident. Rather, because:
- The dining hall was cleaned following the completion of breakfast and not re-opened for lunch service until 11.30am;
- Between 11.30am and 12.30pm, there was only a relatively small number of people in the dining hall for lunch;
- They were all adults, meaning a spillage would have been easily observed;
- The dining hall only became busier when the students entered, shortly after 12.30pm;
- 1.00pm (being the approximate time of the incident) was ‘peak time’; and
- There was a significantly higher probability that the soup was spilt between 12.45 and 1.00pm.
On that basis, and because the Court of Appeal found a system of continuous inspection would likely have resulted in the dining hall being inspected between every 10 and 20 minutes or so (during busy periods), it could not be said, on the balance of probabilities, that the soup would have been detected and attended to prior to the incident.
Accordingly, the applicant’s leave to appeal was granted and the trial judge’s orders were set aside.
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Yakou v Jo-Yo Nominees Pty Ltd [2025] VSC 58
The plaintiff attended a concert at a function centre with two friends. The first defendant was an acquaintance of the plaintiff. The second defendant was the operator of the venue and the third defendant was the owner. A dispute broke out between the plaintiff’s friends and a security guard over corkage charges. One or both of the plaintiff’s friends then struck the first defendant who was also in attendance at the concert. The plaintiff’s friends were then ejected by security but returned. A violent brawl broke out and the first defendant used a kitchen knife to stab the plaintiff and his friends. The plaintiff suffered injuries to his abdomen and left wrist and was later hospitalised.
As against the second and third defendants, the plaintiff raised various arguments, including that they failed to implement adequate security protocols, particularly in preventing evicted patrons from re-entering the venue and by failing to ensure there was a sufficient security presence.
The Court rejected the allegations that the second defendant had breached its duty of care. In doing so, it found that:
- The second defendant adequately ‘put down’ or ‘placated’ the corkage dispute;
- It was not reasonably foreseeable that there was a real risk of another violent incident, let alone an alarmingly violent brawl, after the corkage dispute;
- Despite the absence of any written documentation regarding security protocols, that would not have caused the security guards on duty to have acted any differently. They were adequately trained and briefed; and
- Whilst there were only 3 security guards remaining at the venue prior to the brawl (as 12 had signed off after the concert), that was reasonable given the number of guests and staff present.
The Court also found no causal link between any of the alleged deficiencies in the second defendant’s security measures and plaintiff’s injuries. As, it said, the plaintiff and his friends were ‘evidently intent upon very serious violence’, it was unlikely any different or additional security measures would have prevented their re-entry and/or the brawl.
As against the third defendant, the only substantive allegation advanced by the plaintiff was that there was a malfunctioning foyer door that failed to operate as an adequate crowd controlling tool. The Court found the door was not broken and was functioning correctly, but, regardless, it was the responsibility of the second defendant.
Finally, in relation to the plaintiff, the Court commented that he ‘plainly put himself in harm’s way and at very grave risk of exactly what subsequently ensued… [he] recklessly courted the risk of very serious injury and, in a practical sense, brought his subsequent injuries upon himself…. in simple terms, the plaintiff entered the foyer as a trespasser… [that] amount[ed] to the plaintiff engaging in ‘illegal activity’. Therefore, whilst the Court was not required to decide the defences pleaded by the defendants, including contributory negligence, it effectively accepted that the plaintiff’s injuries involved the materialisation of an obvious risk of harm.
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Lynch v Bredbo Pty Ltd [2025] NSWDC 54
In September 2022, the plaintiff and Mark Streeter (Streeter) were involved in an accident when an ATV driven by the second defendant flipped on a farm property owned by Bredbo Pty Ltd (Bredbo). Streeter was a director of Bredbo.
The plaintiff made a claim for damages against Streeter and Bredbo in relation to injuries he sustained in the incident, alleging that Streeter caused the incident when he accelerated the vehicle to strike a pig that was in front of it.
Streeter sought indemnity in relation to the plaintiff’s claim under a Farm Liability issued by Insurance Australia Limited (IAL) to Bredbo. In doing so, Streeter lodged two claim forms and said the accident occurred when the ‘right front tyre [of the ATV] sunk into a bog/hole and this caused the vehicle to turn over’. When IAL requested that Streeter’s version of events be sworn by statutory affidavit, Streeter issued a cross-claim against IAL.
The plaintiff’s principal claim against Streeter and Bredbo resolved, so the hearing was limited to Streeter’s cross-claim. IAL denied that it was liable to indemnify Streeter on the basis that the claim did not fall within the insuring clause, a firearms exclusion applied, legal and reasonable precautions and conditions were breached and the information provided by Streeter in relation to the incident circumstances constituted fraud.
The Court dismissed Streeter’s cross-claim against IAL. In doing so, it found that
- The incident occurred on a hunting trip and, therefore, could not be said to have arisen from Bredbo’s ‘Business’, being its ownership or occupation of the property and private work undertaken by Bredbo’s employees;
- Regardless of whether a firearm was discharged, a recreational hunting trip enlivened the firearms exclusion, as its purpose was to exclude a wide range of conduct because of the inherently dangerous nature of firearms. ‘It is not restricted to injury caused by the gun being shot’;
- There was no breach of the legality condition as it was not established that the act of striking a pig, in the relevant circumstances, was an act of cruelty in breach of the Prevention of Cruelty to Animals Act 1979;
- The reasonable precautions condition was breached as Streeter had either deliberately or recklessly hit the pig; and
- Streeter committed fraud, which entitled IAL to refuse to indemnify him pursuant to s.56 of the Insurance Contracts Act 1984.
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De Martin & Gasparini Pty Ltd v Bartlett [2025] NSWCA 56
The first respondent was a concreter and linesman employed by a labour hire company. His services were contracted to the appellant. In April 2018, the first respondent was involved in an incident when he was directed by the appellant to move an empty concreting hose to another location with the assistance of an unknown co-worker. The first respondent alleged that he suffered a lumbar spine injury when the co-worker picked up the hose and began to walk before he was ready, causing him to be jolted forward.
The first respondent commenced proceedings against the appellant and the second respondent, the Workers Compensation Nominal Insurer. At first instance, the judge found that both the appellant and the second respondent were negligent. In doing so, it found the appellant was vicariously liable for the negligence of the co-worker in failing to properly co-ordinate the lifting process, even though it was unclear (and no findings were made) as to whether the co-worker was an employee or labour hire worker of the appellant. Liability was apportioned 90% to the appellant and 10% to the second respondent.
The primary liability issue on appeal was whether the appellant was vicariously liable for the unknown co-worker.
In addressing that question, the Court of Appeal was critical of the trial judge’s refusal to make a finding regarding the employment of the co-worker and that, either way, the appellant was vicariously liable as the co-worker was working under its supervision and direction ‘as if’ he was an employee of the appellant. The Court of Appeal said there was a vital difference, for the purpose of attributing liability, between employees of the appellant and labour hire workers or contractors. In respect of the latter and having regard to the principles identified in Kondis v State Transport Authority and Mt Owen Pty Ltd v Parkes, in particular the control exercised by the appellant and how the work was undertaken, the Court of Appeal expressed the view that the appellant could not be found vicariously liable. It determined that there was no requisite transfer of control over the relevant tasks, moving concrete being a task the first respondent had performed on numerous occasions and for which it had specialised knowledge. Further, the appellant did not direct the first respondent and the co-worker in how to perform the task.
Ultimately, however, the Court of Appeal drew an inference, from the available evidence, that the co-worker was an employee of the appellant, rather than a contractor or labour hire worker. On that basis, it was determined the appellant was vicariously liable.
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Pavey-Dray v Weomany Pty Ltd trading as Zaab Braddon [2025] ACTSC 65
The plaintiff went out to dinner with her husband and friends to Zaab Thai restaurant in the ACT. The first defendant company’s director was the owner of the restaurant. The remainder of the defendants were the owners of the leasehold on which the restaurant was situated (amongst other businesses). Upon leaving the restaurant, the plaintiff was walking down a staircase, when her stiletto heel became stuck in the tread in one of the stairs, causing her to fall down the stairs onto the footpath and suffer injuries as a result.
The plaintiff’s claim against the owners of the leasehold settled on the first day of the hearing
The first defendant argued it bore no liability for the incident as the plaintiff fell on the side of the stairs leased to the café next door. Despite that, the first defendant conceded it had previously been told that the stairs were uneven and required rectification due to tiles that had previously been removed by the first defendant.
The Court found that, despite the lease arrangements, the first defendant was an occupier of the entire staircase due to the work it had previously done in removing the tiles i.e. it ‘occupied and altered the whole area‘. Further, it determined that, although the warning the first defendant had been provided with related (only) to the riser height, it should have identified that there were pitted and uneven treads on the staircase that posed an unreasonable risk of injury to patrons of the premises.
The Court refused to make a finding of contributory negligence against the plaintiff. In doing so, it noted that this was the first time the plaintiff had encountered the staircase in poor light, her shoe became caught on the first step, and the hole her shoe became caught in was at the back of the tread and in the shadows and, therefore, difficult to see.
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Eade v St Barbara & Anor [2025] VSC 21
The plaintiff was a ‘fly-in fly-out’ worker who was employed by the second defendant. The first defendant was the parent company of the second defendant. The plaintiff was working in Papua New Guinea (PNG) when he fell and fractured his leg and ankle. He subsequently underwent surgery in Australia for his injuries.
The plaintiff’s employment contract included a term that ‘[f]or the avoidance of doubt, Australian Employment laws do not apply to this contract. The Employment Conditions and Letter of Offer are governed by the laws of the Independent State of Papua New Guinea‘. The Letter of Offer and Employment Conditions (together, the Employment Contract) were stated to form the entirety of the agreement between the two parties. The Employment Contract provided that urgent medical services would be provided on site, and cover for emergency evacuation from PNG and transit to/from the plaintiff’s point of hire would be covered, however all other private medical costs and treatment for personal health matters in his home country would be the plaintiff’s responsibility.
The main issue in dispute was whether the appropriate forum for the plaintiff’s damages claim was the Supreme Court of Victoria or the National Court of PNG.
The Court found that the defendants had failed to establish that Victoria was clearly the inappropriate forum, nor that a trial in Victoria would be oppressive or vexatious. In making that decision, consideration was given to the following factors:
- It was unclear whether the applicable law was the law of Victoria or PNG (and that was a matter that needed to be determined by the trial judge);
- The plaintiff’s claim against the defendants was based in tort, not contract. Therefore, the fact that the governing law of the Employment Contract was said to be that of PNG was inconsequential;
- Regardless of 1 and 2, a Victorian Court could apply PNG law and no evidence was led as to any particular complexity surrounding PNG tort law;
- Whilst there were limitations on the ability of the defendants to claim under their insurance, if the proceeding continued to be heard in Victoria, the nature of the insurance arrangements evidenced that the defendants had carefully considered those and coverage issues pertaining to workers like the plaintiff;
- There were witnesses for all parties who resided both inside Victoria (including the plaintiff and his wife) and outside Victoria. The latter witnesses could give evidence via audio-visual link; and
- The plaintiff would have access to legal representation in Victoria, but not in PNG.
Accordingly, the Court dismissed the defendants’ application to stay or dismiss the proceeding.
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This article was written by Ashley Harding, Partner, Madeleine Dashiell, Solicitor and Claudia Albert, Solicitor.
