Professional Liability Guide

PROFESSIONAL LIABILITY GUIDE

However, despite these authorities, the phrase ‘ occasioned by or happening through ’ has been considered in at least one instance as the same as ‘ caused by ’, as occurred in Gunns Forest Products Ltd v North Insurances Pty Ltd & Ors, where Mandie AJA of the Victorian Court of Appeal said: ‘The question to be determined is not how the damage to the woodchips might be characterised but whether the damage to the woodchips was occasioned by or happened through, that is, was caused by, “contamination”.’ 469 However, it is worth noting that decisions such as Rowprint , Eastern Suburbs and Lebah were not raised (and did not form part of the judgment) in Gunns Forest , and that neither party appears to have taken issue with the Court’s lack of distinction between ‘ occasioned by or happening through ’ and ‘ caused by ’. ‘In respect of’ In the context of a liability insurance policy, the phrase ‘ in respect of’ is frequently used as a conduit between the event and the insured’s liability to pay compensation to a third party. This was the case in National Vulcan Engineering Insurance Group Ltd v Pentax Pty Ltd, 470 where the New South Wales Court of Appeal held that a contractual indemnity between co-insureds to a policy (one of whom was the primary plaintiff’s employer) was a claim ‘ for or in respect of’ personal injury. The Court in National Vulcan held that the contractual indemnity claim was not, of itself, a claim ‘ for ’ personal injury, but that it was a claim ‘ in respect of’ personal injury. It is clear based on the decision in National Vulcan that the causal phrase ‘ in respect of ’ is broader in scope than the word ‘ for ’. In this regard, the decision in National Vulcan is similar to that in Kemcon , in which the Court found that the phrase ‘ arising out of ’ was broader in scope than ‘ for ’. On this basis, it would appear that ‘ in respect of ’ has at least a similar reach to a phrase such as ‘ arising out of ’. However, numerous authorities suggest that ‘ in respect of ’ is much broader than this.

In Australia, the phrase has historically had a very broad scope. As early as 1941, Mann CJ of the Victorian Supreme Court stated the following in Trustees Executors & Agency Co Ltd v Reilly:

‘The words “in respect of” are difficult of definition, but they have the widest possible meaning of any expression intended to convey some connexion or relation between the two subject-matters to which the words refer.’ 471

The framing of the words ‘ in respect of ’ in this precise way was repeated by the High Court in State Government Insurance Office (Qld) v Crittenden . 472

469 [2006] VSCA 105 [22]. 470 (2004) 20 BCL 398. 471 [1941] VLR 110, 111. 472 (1966) 117 CLR 412.

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