Australasian Medical Insurance Ltd & Anor v CGU Insurance Ltd [2010] QCA 189

CATCHWORDS: INSURANCE – THE POLICY – THE INSURED – where second appellant was a partnership of 15 pathologists – where first appellant was the partners’ professional indemnity insurer – where respondent insurer issued second appellant with policy covering certain risks associated with the pathology practice – where first appellant indemnified second appellant in respect of a claim and sought contribution from respondent – where first appellant had issued 15 separate policies, one to each partner – where respondent’s policy did not name each partner but referred to three practice companies “T/AS Queensland Medical Laboratory Partnership” – whether the insured under the policies issued by the two insurers were different – whether the partners were insured under the respondent’s policy INSURANCE – DOUBLE INSURANCE AND CONTRIBUTION – GENERALLY – where first appellant indemnified second appellant in respect of a claim and sought contribution from respondent – where respondent’s policy included a clause excluding liability where partners were entitled to indemnity under another professional indemnity insurance policy – where trial judge struck down the clause as void under s 45(1) of the Insurance Contracts Act 1984 (Cth) – where parties intended respondent’s policy to cover an employee not indemnified by first appellant’s policy and to cover a partner’s vicarious liability for the negligence of a non-medical employee – where, notwithstanding this intention, respondent had previously contributed to a similar claim made by first appellant – where trial judge found appellants were estopped from denying the risk covered by respondent’s policy did not extend to the claim – whether the policies of first appellant and respondent covered the same risk – whether the respondent’s policy responded to the claim.

Issues: In an appeal by AMIL as an insurer seeking contribution by CGU (another insurer) arising out of a claim from the second appellant’s negligence, where it was alleged both policies covered the negligence, the court considered who was insured, the nature of the risk (same or not) and whether estoppel applied.

Muir JA and Atkinson J concurred with the reasons of Chesterman JA. His Honour upheld the reasoning of the Chief Justice in respect to who was insured, disagreed as to the nature of the risk, but agreed in relation to estoppel by convention.

The judgment is helpful consideration of the principles of double insurance and estoppel by convention.

Chesterman JA

[7] The Chief Justice described the claim against CGU in these terms:

“[2] The claim for contribution relates to a claim pursued in court proceedings brought by Tracey Leigh D’Arcy and Scott John Vinnicombe against QML, for damages for QML’s negligence, on the basis that QML failed properly to interpret the results of a pap smear on 18 February 1993, a failure which resulted in a lost opportunity to prevent the development of the cervical cancer which subsequently afflicted her. AMIL was obliged to indemnify QML in respect of QML’s liability under that claim, and AMIL did so. AMIL accordingly paid the claimants $435,000 for damages and $33,000 for costs, and itself incurred costs amounting to $18,517.95. It was common ground that QML was liable to those claimants, and that QML’s settlement with them was reasonable.”

[9] The nature of the right given to an insurer to recover contribution from another where both have effected a policy of insurance was described in Albion Insurance Co Ltd v Government Insurance Office of New South Wales (1969) 121 CLR 342 at 352:

“What attracts the right of contribution between insurers … is simply the fact that each contract is a contract of indemnity and covers the identical loss that the identical insured has sustained … .”

[10] CGU defended the action on three bases. It argued that the insured under the AMIL policies were not insured under its policy. Secondly it submitted that the risk covered by the policies, those issued by AMIL and CGU’s policy, was different. Thirdly it contended that if the insured and the risk covered were identical AMIL and QML were estopped from denying that the risk covered did not extend to the D’Arcy claim. The estoppel was identified as being based on the convention the parties had adopted in their dealings with each other with respect to the issue of the CGU policy.

[11] The Chief Justice held in favour of the appellants on the first two grounds but for the respondent on the third.

[12] The CGU policy which the appellant contended indemnified the second appellant against the D’Arcy claim covered claims made in the year 1 July 1997 to 30 June 1998 (“the 1998 Policy”). It was the third such policy and was, in effect, a renewal of the policies issued in the two preceding years.

[13] The convention which CGU advanced as giving rise to the estoppel, and which the Chief Justice accepted, was described by his Honour: “[65] It applied to each of the policies for the years ended 1996, 1997 and 1998. The assumption was that the policy did not provide cover for QML partners for negligence in their own right, although it would cover a partner’s vicarious liability for the negligence of a non-medical employee … . It was not an overlapping or duplicate insurance to that which the partners already had from AMIL. It provided cover for the employees of the partnership, or of the insured companies, in the event those employees were sued. And it provided cover where a claim against the partnership arose solely from the conduct of a non-medical employee, but excluded a situation where a partner failed properly to supervise the employee. Ms Nicolson … and Mr Hansen … were in agreement that the CGU policy would not cover the D’Arcy claim.”

[24] CGU relied upon the High Court’s emphatic affirmation that parties who sign a written contract are bound by its terms. The court (Gleeson CJ, McHugh, Kirby, Hayne and Callinan JJ) said in Equuscorp Pty Ltd v Glengallan Investments Pty Ltd (2004) 218 CLR 471 at 483:

“The respondents each having executed a loan agreement, each is bound by it. Having executed the document, and not having been induced to do so by fraud, mistake, or misrepresentation, the respondents cannot now be heard to say that they are not bound by the agreement recorded in it. The parol evidence rule, the limited operation of the defence of non est factum and the development of the equitable remedy of rectification, all proceed from the premise that a party executing a written agreement is bound by it. … There are reasons why the law adopts this position. First, it accords with the ‘general test of objectivity [that] is of pervasive influence in the law of contract’. The legal rights and obligations of the parties turn upon what their words and conduct would be reasonably understood to convey, not upon actual beliefs or intentions. Secondly, … oral agreements will sometimes be disputable. … Where parties enter into a written agreement, the Court will generally hold them to the obligations which they have assumed by that agreement. At least, it will do so unless relief is afforded by the operation of statute or some other legal or equitable principle applicable to the case.” (footnotes omitted)

[26] The reasons cannot, I think, be criticised. The ambiguity in the identity of the insured under the CGU policy is best resolved by notionally omitting the description “trading as” (“T/AS”) so that the partnership, QML, is included as a named insured. This approach, and the conclusion to which it leads, is inevitable given the uncontroversial facts. The proposal, which became incorporated into the policy, was made inter alia by the members of the partnership. The omission of the individual partners as designated insured was explained by Ms Nicolson’s evidence concerning the change in policy wording from the previous year which obviated the need to list the partner separately by name in the schedule. As well Mr Hansen for CGU prepared a quote with respect to the proposal for the 1998 Policy which identified the partners individually. The parties obviously intended to include the partners of QML as insured.

[27] The respondent’s first argument on its notice of contention should be rejected.

[30] The appellants argued that Special Condition 11 fell within the ambit of s 45(1) of the Insurance Contracts Act 1984 (Cth) (“IC Act”) and was therefore void, leaving the full extent of the insuring clause to operate. The contrary submission, advanced unsuccessfully by the respondent, was that Special Condition 11 did not take away what the insuring clause gave, but should instead be read with it to define and confine the risk which was covered by the CGU policy, which did not extend to those risks covered by the AMIL policies. Properly construed, CGU submitted, its policy never extended to cover a risk of the type represented by the D’Arcy claim. On that construction Special Condition 11 did not exclude liability “by reason that” the second appellant had affected the AMIL policies. The CGU policy, the argument ran, never extended to the subject matter covered by the AMIL policies.

[31] The Chief Justice accepted the appellants’ submission. His Honour regarded Special Condition 11 as a provision excluding the obligation to indemnify which would otherwise arise pursuant to the insuring clauses, by reason that QML had entered into other contracts of insurance, with AMIL, which covered the same risk. The claim brought by Ms D’Arcy and Mr Vinnicombe arose from an “act, error, omission or conduct” of the insured, which included the partners of QML, and was therefore within the insuring clause. Special Condition 11 excluded the obligation of indemnity by providing the CGU policy did not

“indemnify the (partners) in respect of a claim … arising from the activities of Pathologists … providing services for or on behalf of the Insured, where such Pathologist … is entitled to indemnity under (the AMIL) … Insurance.” and was therefore struck down by s 45.

[32] Section 45 provides:

“(1) Where a provision included in a contract of general insurance has the effect of limiting or excluding the liability of the insurer under the contract by reason that the insured has entered into some other contract of insurance, not being a contract required to be effected by or under a law, including a law of a State or Territory, the provision is void.”

[36] The Chief Justice preferred the appellants’ construction. In my opinion the respondent’s construction is to be preferred and the facts which led the Chief Justice to find the convention which gave rise to the estoppel should have led to the construction of the CGU policy for which it contends. To repeat, the convention which was found to exist between the second appellant and the respondent was that the 1998 Policy:

“… did not provide cover for QML partners for negligence in their own right, although it would cover a partner’s vicarious liability for the negligence of a non-medical employee … . It was not an overlapping or duplicate insurance to that which the partners already had from AMIL. It provided cover for the employees of the partnership, or of the insured companies, in the event those employees were sued. And it provided cover where a claim against the partnership arose solely from the conduct of a non-medical employee, but excluded a situation where a partner failed properly to supervise the employee.”

Fact II

[38] In July 1995 Dr Russell prepared a memorandum to be circulated to the cytology screeners employed by QML, or one of the practice companies. Before issuing the memorandum Dr Russell sought and obtained the approval of CGU to its contents.

It read:

“Recent litigation and threatened litigation against pathology firms … has heightened the awareness of all pathology professionals including staff directly responsible for screening … . It is … more important than ever to ensure that all staff use professional care in all things that they do. For the information of those who may be more concerned about their level of duty of care than in the past, please bear in mind that before any QML employee will be personally liable for any mistakes which they … may make, the following systems have to be satisfied.

1. The employee must firstly be actually negligent.

2. The negligence must be capable of proof in a court of law … (which) can be very time consuming and difficult.

3. Even if negligence is proven in a court, that negligence has to be attached to an identified individual. Under common law employer/employee arrangements, the employer is liable for the actions of the employee. … In practice most plaintiffs will seek only to recover from the employer.

4. Even if the above are all satisfied and QML is unable … to indemnify the employee, all QML pathologists are members of a medical defence organisation.

5. If all of the above mechanisms fail, QML has arranged a professional indemnity insurance policy with an independent underwriting insurance company to cover its employees in the unlikely event that any liability could be attached to them.

While no absolute guarantees can be given … that there could never … be negligence which attaches back to the individual, the above ‘net’ should ensure that no QML employee would ever be liable personally for any acts they commit whilst employed at QML.”

The insurer referred to in paragraph 5 was CGU.

[39] Dr Russell explained that his purpose in writing the memorandum was to:

“give … comfort to employees who nationally were at risk … and convince the employees that the chance of them personally losing their house was as low as (QML) as a business could make it.” He agreed that in writing paragraph 5 he meant to convey that if for some reason AMIL did not cover a claim under its polices:

“then the employees had the knowledge or … comfort that in the unlikely event that they were sued … there was professional indemnity insurance separately that had been arranged for them.” Mr Hansen gave evidence confirming that paragraph 5 of the memorandum accurately reflected his own understanding of what the CGU policy covered.

[40] The point is, as the Chief Justice noted in his reasons, that by his memorandum, and in particular paragraph 5, Dr Russell for QML confirmed its intention that the CGU policy would only respond to a claim to indemnify an employee not covered by the AMIL policies.

[53] These facts which I have numbered I to VII are taken, more or less verbatim, from the findings made by the Chief Justice. His Honour expressly accepted as honest and reliable Mr Hansen’s account which is the basis for fact I. His Honour thought there was little conflict between the testimony of Mr Hansen and Ms Nicolson on the one hand and Dr Russell on the other. Notwithstanding that observation his Honour accepted what was said by CGU’s witnesses. There was a body of more or less contemporaneous documents supporting what they said.

Construction of the CGU Policy

[54] The copious references to what representatives of the insurer, insured and broker said and thought should not obscure the fact that the 1998 Policy is to be construed objectively, by reference to what the reasonable observer would have concluded was meant by the words chosen by the parties to reflect and record their bargain in the light of the relevant “matrix of facts” known to them both. The subjective intentions or beliefs of one or both parties to a contract as to what they had agreed is, of course, inadmissible. The High Court (Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ) said in Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 at 179:

“This Court, in Pacific Carriers Ltd v BNP Paribas, has recently reaffirmed the principle of objectivity by which the rights and liabilities of the parties to a contract are determined. It is not the subjective beliefs or understandings of the parties about their rights and liabilities that govern their contractual relations. What matters is what each party by words and conduct would have led a reasonable person in the position of the other party to believe. References to the common intention of the parties to a contract are to be understood as referring to what a reasonable person would understand by the language in which the parties have expressed their agreement. The meaning of the terms of a contractual document is to be determined by what a reasonable person would have understood them to mean. That, normally, requires consideration not only of the text, but also of the surrounding circumstances known to the parties, and the purpose and object of the transaction.” (footnotes omitted)

[55] In Pacific Carriers the same court had said (2004) 218 CLR 451 at 462:

“The construction of the letters of indemnity is to be determined by what a reasonable person in the position of Pacific would have understood them to mean. That requires consideration, not only of the text of the documents, but also the surrounding circumstances known to Pacific and BNP, and the purpose and object of the transaction. In Codelfa Constructions Pty Ltd v State Rail Authority of NSW ((1982) 149 CLR 337), Mason J set out with evident approval the statement by Lord Wilberforce in Reardon Smith Line Ltd v Hansen-Tangen:

‘In a commercial contract it is certainly right that the court should know the commercial purpose of the contract and this in turn presupposes knowledge of the genesis of the transaction, the background, the context, the market in which the parties are operating.’”

[56] The same approach is taken in the construction of policies of insurance. Gleeson CJ explained in McCann v Switzerland Insurance Australia Limited (2000) 203 CLR

579 at 589:

“A policy of insurance, even one required by statute, is a commercial contract and should be given a businesslike interpretation. Interpreting a commercial document requires attention to the language used by the parties, the commercial circumstances which the document addresses, and the objects which it is intended to secure.” (footnotes omitted)

That explanation was recently reaffirmed by Gummow, Kirby, Heydon, Crennan and Kiefel JJ in CGU Insurance Ltd v Porthouse (2008) 235 CLR 103 at 116.

[57] Evidence of negotiations between the parties in the course of arriving at their ultimate contract are inadmissible, except to the extent that they:

“… establish objective background facts which were known to both parties and the subject matter of the contract. … But in so far as they consist of statements and actions of the parties which are reflective of their actual intentions and expectations they are not receivable”:

Codelfa at 352 per Mason J. See also Prenn v Simmonds [1971] 1 WLR 1381; Secured Income Real Estate (Australia) Limited v St Martins Investments Pty Ltd (1979) 144 CLR 596. Likewise prior drafts of a contract discarded and amended in the process of recording the final contract are inadmissible: National Bank of Australasia Ltd v J Falkingham & Sons [1902] AC 585 at 591.

[58] There are, however, exceptions to the prohibition. The first exception arises where the words in a contract are capable of more than one meaning. In that case “extrinsic evidence is admissible to show the facts which the negotiating parties had in their mind”: Codelfa at 350 per Mason J. The point was made at greater length by Kerr J in The Karen Oltmann [1976] 2 Lloyd’s Rep 708. The case concerned the construction of a charter party for two years’ duration which gave the charterer a right to terminate “after 12 months trading”. The dispute was whether the right to terminate arose at the expiration of 12 months or at any time thereafter. Kerr J looked at the telexes exchanged in the negotiations for the charter party. He said (at 712):

“If a contract contains words which, in their context, are fairly capable of bearing more than one meaning, and if it is alleged that the parties have in effect negotiated on an agreed basis that the words bore only one of the two possible meanings, then it is permissible for the Court to examine the extrinsic evidence … to see whether the parties have in fact used the words in question in one sense only, so that they have in effect given their own dictionary meaning to the words as the result of their common intention.”

[59] A very brief recognition of the exception appears in the judgment of Stephenson LJ in Arrale v Costain Civil Engineering Ltd [1976] 1 Lloyd’s Rep 98 at 104:

“Even if the ‘genesis’ of a written contract includes negotiations and its ‘aim’ includes intentions, they are alike admissible only to clarify ambiguity or to support rectification.”

[60] Lewison in his book The Interpretation of Contracts (2nd Ed p 37-38) regards the principle, at least that espoused in Karen Oltmann, as “akin to the formulation of an estoppel by convention … .” The opinion supports my conclusion that the convention found by the Chief Justice, the basis on which CGU and QML made their contract, is available as an admissible relevant fact to aid in construing the 1998 Policy.

[61] This exception to the prohibition against receiving evidence of negotiations is, I think, the same as that described by Mason J in Codelfa at 352-3. His Honour said:

“There may perhaps be one situation in which evidence of the actual intention of the parties should be allowed to prevail over their presumed intention. If it transpires that the parties have refused to include in the contract a provision which would give effect to the presumed intention of persons in their position it may be proper to receive evidence of that refusal. After all, the court is interpreting the contract which the parties have made and in that exercise the court takes into account what reasonable men in that situation would have intended to convey by the words chosen. But is it right to carry that exercise to the point of placing on the words of the contract a meaning which the parties have united in rejecting? It is possible that evidence of mutual intention, if amounting to concurrence, is receivable so as to negative an inference sought to be drawn from surrounding circumstances.”

[62] The English cases, in particular Karen Oltmann, suggest that where the parties in negotiation have concurred on a meaning as to a word or phrase and share a mutual intention with respect to it, evidence of the concurrence and the intention is admissible, on the question of what the word or phrase means.

[63] The second exception to the rejection of evidence of negotiations arises where the negotiations have resulted in an actual agreement which antedates the documented form of the contract the construction of which is in dispute. Lewison puts it this way (at 35-36):

“This objection (to evidence of negotiations) is not open in the case of reference to an antecedent agreement. In (Reardon Smith) it was said that the court should be placed in thought in the same factual matrix as that in which the parties were when they made their agreement. If they had already reached an agreement, that would have been one objective fact which would have been known to both of them, and ought therefore to be admissible in evidence.”

[64] The case principally relied upon for the proposition is Ladbroke Group plc v Bristol City Council [1988] 1 EGLR 126. The case concerned the construction of a rent review clause in a very long lease. The date on which the first review was to occur was ambiguously stated. The lease had been executed consequent upon a building contract between the parties which provided that the property to be built pursuant to the agreement would then be leased. A draft lease was annexed. The court had regard to the rent review clause in the draft to elucidate what the parties meant by the date of the first review in the executed lease. The Court of Appeal said (129):

“In our judgment it is therefore permissible and relevant to look at the draft lease for the purpose of discovering the parties’ intentions in including the reference to March 31 1973 in clause 2(a) of the lease as executed. In our judgment, a study of clause 2(a) of the draft lease in its context makes reasonably clear the parties’ intentions … .”

[65] Ladbroke was followed in KPMG v Network Rail Infrastructure Ltd [2008] 1 P & CR 11. Twenty years after the execution of the lease a dispute arose between lessor and lessee as to the terms in which the latter might quit. In this case, too, a draft lease was attached to the agreement for lease. The primary judge had concluded that the draft lease was “of little … assistance” in construing the executed lease in dispute. The argument on appeal in support of that view was dismissed as being “inconsistent … with the decision of this court in Ladbroke Group … .”

Accordingly the earlier agreement:

“… including the form and content of the draft lease attached to it, was an important part of the background and is a permissible aid in the construction of the lease in its final form.”

[66] The court also noted the judgment of Rix LJ in HIH Casualty and General Insurance Ltd v New Hampshire Insurance Co [2001] 2 Lloyd’s Rep 161 at [83]:

“In principle, it would seem to me that it is always admissible to look at prior contracts as part of the matrix or surrounding circumstances of a later contract. I do not see how the parol evidence rule can exclude prior contracts, as distinct from mere negotiations. The difficulty of course is that, where the later contract is intended to supersede the prior contract, it may in the generality of cases simply be useless to try to construe the later contract by reference to the earlier one. … a cautious and sceptical approach to finding any assistance in the earlier contract seems … a sound principle. What I doubt, however, is that such a principle can be elevated into a conclusive rule of law.”

[67] Another example is Squarey v Harris-Smith [1981] 42 P & CR 118 in which a claim that the conveyance of a lease carried with it an implied easement of way over other adjoining land of the lessor was defeated by reference to the contract between the predecessors in title pursuant to which the lease was agreed to be conveyed. A term of the contract excluded the implication.

[68] The principle also appears to have been endorsed by Mason J in Codelfa though his

Honour expressed himself in terms of common assumptions rather than agreement or antecedent contract. I apprehend that the point made by his Honour is the same as that expressed in the cases just discussed. Relevantly Codelfa was concerned with the implication of a term in a building contract. The implication was said to arrive as a matter of construction of the contract. Relevant to the construction were background facts. Mason J said (353-4):

“The implication of the term … rests on findings made by the Arbitrator based on circumstances surrounding the making of the contract, including evidence of the discussions between the parties which preceded entry into the contract. Thus the Arbitrator found that there was a common understanding … that the works would be carried out on a three shift … basis … . He also found that the Authority had represented to Codelfa, and that it had accepted, that no injunction would be granted … . …

The first question is whether, in the light of the principles … explained … it was legitimate to look to this material on the issue of implication of a term. I think it was. The discussions which generated these findings were not negotiations about the terms of the contract. … The relevant discussions were … directed to the question of price. Their object was to enable Codelfa to inform itself of what was involved in the work and to cost it… . … the evidence revealed a matter which was in the common contemplation of the parties yet was not a contractual provision actually agreed upon for the simple reason that it was a matter of common assumption.”

[69] The present case seems to fall more naturally within the second exception rather than the first. The facts found by the Chief Justice, which I have repeated and numbered, establish an agreement between the parties as to the scope of the indemnity to be offered by the 1998 Policy. The case differs from those discussed in that there is no written record by way of a draft of the agreement. That point goes only to the confidence with which a court might find the terms of an earlier agreement. It does not affect the principle described in those cases. In this case the evidence allowed a definite finding of the parties’ agreement, though it was oral.

[70] Even if the case be within the first exception the result is the same. In the course of their negotiations the parties concurred on what they meant by “pathologists and/or medical practitioners providing services for or on behalf of the Insured … .” It was pathologists who had policies with AMIL who were not covered for their own negligence. That left cover for employees and employers who were vicariously liable for the employees’ negligence. The concurrence is a fact which may be used in the construction of the 1998 Policy.

[71] The facts which the Chief Justice found, and which I have set out, with the exception of fact VI, the Fraser claim, show unequivocally that CGU and QML had reached agreement prior to the issue of the 1998 Policy as to the commercial benefit QML accepted from it (i.e. the scope of the cover). They had, at the very least, a common understanding of what the policy was to achieve for them both. That common understanding, or agreement, was admissible and relevant in the construction of the policy and, in particular, the relationship between Special Condition 11 and the insuring clause.

[72] It is plain from the parties’ agreement, and their common understanding, that the 1998 Policy was not to cover the partners of QML for their own negligence (using that word generally to include all bases on which a partner might be liable to compensate a patient arising out of the practice of pathology). The 1998 Policy was intended to indemnify the practice companies and/or the partners in QML, who might be liable to pay damages arising out of the negligence of an employee. As well the policy would indemnify an individual employee who might be sued for his or her own negligence. The parties’ common understanding was that the 1998 Policy would not indemnify the partners of QML who had their own professional indemnity insurance with, as it turned out, AMIL. Special Condition 11 did not exclude liability to indemnify the partners of QML in circumstances where they took out professional indemnity insurance. The condition did not operate “by reason that” the partners had effected insurance with AMIL. Accordingly s 45 of the Insurance Contracts Act had no application.

[73] The results would be the same if one did not regard the facts as establishing an antecedent agreement, or common understanding, as to what the parties meant by the particular phrase they chose to record their contract. That is, if the two exceptions I have discussed were disregarded as not being a proper departure from the rule rejecting evidence of negotiations, the facts would nevertheless establish the same construction of the policy I have advanced.

[74] The facts are admissible to aid in the construction of the 1998 Policy. They fall squarely within the designation of admissible facts identified in the judgments in Pacific Carriers, Codelfa and McCann. All of the facts are of “surrounding circumstances” attending the making of the 1998 Policy, and/or show its commercial purpose, and/or its origin or genesis. They show what the parties set out to achieve by their policy and, more particularly, the risk against which QML sought protection from CGU. When one has regard to the origin and aim of the transaction as revealed by the facts, the scope of the policy and the risk it covered, is readily apparent.

[77] It is therefore necessary to consider whether the D’Arcy claim was one against QML for its vicarious liability for the negligence of the employed cytologist or whether it was a claim against QML for the partners’ own negligence.

[83] The appellants’ submission should be rejected. It would achieve a strained and unnatural result, and one at odds with the common understanding pursuant to which QML effected the 1998 Policy, particularly the memorandum which was the basis of fact II. The policy was to indemnify an employee who was sued, and incidentally the employer. It was not to cover the QML partners for their own negligence. The appellants’ contention would nullify the common understanding and extend indemnity to the partners for their own negligence as long as their negligent conduct was somehow connected with an act or omission of an employee.

[91] The basis on which the appeal should be dismissed makes it unnecessary to discuss the appellants’ challenge to the finding of estoppel by convention, or their arguments that it could not arise by reason of pre-contract statements, or operate against s 45. To the extent that the appellants’ attack on the estoppel depended upon criticisms of fact the critical findings were all supported by evidence which the Chief Justice indicated he accepted. There was ample support for them in the oral testimony and the supporting documents. Devries v Australian National

Railways Commission (1993) 177 CLR 472 and Fox v Percy (2003) 214 CLR 118 show the difficulty in the path of such an attack. The appellants, as I understood their arguments, did not seek to bring the case within the narrow limits within which an appellate court might interfere with findings of fact. I mention this because the criticisms of the facts relevant to the estoppel would, if made out, apply to the facts on which I have relied to construe the policy, or some of them. The appellants relied also upon what they saw as discrepancies between the convention as pleaded and as proved. Even if made out the point goes only to the credit of the respondent’s witnesses, and they were believed.

[92] The appeal should be dismissed with costs.

Brisbane Barrister – David Cormack

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