Professional Liability Guide

PROFESSIONAL LIABILITY GUIDE

‘Resulting from’ and ‘as a result of’ The phrase ‘ resulting from ’ was given consideration and compared with numerous other phrases (most notably, ‘ arising out of ’) in Baulderstone Hornibrook Engineering Pty Limited v Gordian Runoff Limited. 460 In his judgment, Einstein J made the following observations: ‘The Oxford English Dictionary defines “arise” as “of circumstances viewed as results: to spring, originate or result from”. The same publication describes “out of” as meaning “from (something) as a cause or motive; as the result or effect of; because or by reason of”. Combining the two definitions in participle form suggests that “arising out of” has a meaning along the lines of “springing as the result or effect of”, or “originating by reason or because of”.’ 461 While Einstein J has simply used a dictionary to define the word ‘ arise ’, the similarity between the terms ‘ arise ’ and ‘ result ’ is clear. Further, the dictionary definitions appear to provide no real contrast between ‘ from ’ and ‘ out of ’. The usage of terms such as ‘ springing ’ and ‘ originating ’ further ties ‘ resulting from ’ into phrases such as ‘ arising out of ’ and ‘ arising from ’, given the use of these terms in the Quintano and Walton decisions. In QBE Insurance Limited v Nguyen, the phrase ‘ as a result of ’ was determined to be capable of a wide meaning, broader in scope than of proximate cause , given the following passage from the judgment: ‘The expression “as a result of” is also capable of bearing a wide meaning. The policy uses a variety of expressions, as Gray J points out. In s 2, for example, the “occurrence” must be “caused by the nature condition or quality” of products of the insured. I incline to the view that “caused by” is a narrower and more precise concept. It is obvious that QBE could have defined the required link between the bodily injury and the business of the insured more narrowly and more precisely had it wished to do so.’ 462 Later in the judgment in Nguyen , the Court pointed out that the phrase ‘ as a result of ’ was used alongside ‘ caused by ’ and that this was indicative of an apparent contradistinction between the two phrases. ‘Attributable to’ Despite the phrase ‘ attributable to ’ being quite common in insurance policies in Australia, 463 there does not appear to have been significant judicial consideration of its scope and meaning. Nonetheless, Derrington and Ashton 464 cite the English decision of Royal Exchange Assurance v Kingsley Navigation Co Ltd 465 when stating that ‘ attributable to ’ is: ‘wider than proximate cause and refers to any act, event or state of affairs which could properly be described as a cause, ranging according to its context from a loose causal connection to proximate cause.’ 460 [2006] NSWSC 223. 461 Ibid [990]. 462 (2008) 100 SASR 560, 575. 463 Perhaps most famously featuring in a policy endorsement proviso in the Thalidomide case of Distillers Co Bio-Chemicals (Australia) Pty Ltd v Ajax Insurance Co Ltd (1974) 130 CLR 1. 464 Hon. Desmond Derrington, Ronald Ashton, The Law of Liability Insurance (LexisNexis Butterworths 3rd Ed, 2013) 498. 465 [1923] AC 235.

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