LANE V DIVE TWO PTY LTD

[2012] NSWSC 104, New South Wales Supreme Court, Justice Adamson, 24 February 2012

Insurance (public liability) - Insuring clause - Whether liability arose in connection with assured's business - Effect of exclusion for criminal acts - Liability of brokers for not obtaining comprehensive cover

DTP, a company controlled by Mr Todd, carried on a scuba-diving business. In the early afternoon of 29 July 2006 Mr Todd picked up passengers for a trip. They did not pay for the trip, and there was no swimming or diving involved. Later that afternoon Dive One collided with a vessel from which Mr Lane was fishing. Mr Lane suffered serious injuries. Mr Todd pleaded guilty to a charge of dangerous navigation occasioning grievous bodily harm. The claim brought by Mr Lane against DTP was settled, and DTP sought indemnification from his public liability insurers or, in the alternative, from his brokers. The policy stated that indemnity would be provided to pay compensation for liability for "Injury and Damage in connection with the Insured's Business", scuba-diving. The policy excluded: "Any alleged or actual fraudulent, dishonest, malicious, wilful or criminal act or omission of the Insured".