ALLIANZ AUSTRALIA INSURANCE LTD V CERTAIN UNDERWRITERS AT LLOYD’S OF LONDON SUBSCRIBING TO POLICY NUMBER B105809GCOM0430

[2019] NSWCA 271, New South Wales Court of Appeal, Chief Justice Bathurst, Justice of Appeal Macfarlan and Justice of Appeal Meagher, 7 November 2019

Insurance – Double insurance and contribution – Policy containing an exclusion clause and policy containing an excess clause – Whether the two provisions cancelled each other out

Mr Dempsey, who was working on the construction of a road, was hit by a passing car and seriously injured. He received some AUS$1 million in damages from Baulderstone, the builders of the road. Baulderstone was the beneficiary of a construction all risks policy issued by Allianz. This provided that if there was any other insurance in place, the Allianz policy was to become an excess cover only. The Lloyd’s policy, by contrast, contained a full exclusion of liability “which forms the subject of insurance by any other policy and this Policy shall not be drawn into contribution with such other insurance”. Baulderstone made a claim against Allianz, which paid the loss in full. Allianz then sought contribution from Lloyd’s.