Case note: Shapcott v W.R. Berkley Insurance (Europe) Limited & Anor [2015] QDC 102

Background

Mr Gary Michael (Michael) brought a claim for personal injuries against Raymond Shapcott (Shapcott) arising out of a massage and Atlas Profilax treatment.  That claim is regulated by the Personal Injuries Proceedings Act 2002 (Qld) (PIPA).

Shapcott issued a contribution notice under the PIPA to Paul Camac (Camac).  Camac held a policy of insurance with professional indemnity insurer, W.R. Berkley Insurance (Europe Limited (Berkley).  Shapcott had no relevant policy of insurance under which he was the ‘named’ insured.

Berkley denied indemnity to Shapcott under the policy.  Shapcott proposed to issue a contribution notice under the PIPA to Berkley.  Michael consented to issue of the notice but Berkley refused. Shapcott made application to the Court for leave to issue a contribution notice to Berkley.

Issue

The central issue for determination was whether section 16(1) of PIPA was engaged, so as to make the Berkley a ‘contributor’.  Section 16(1) states:

‘A respondent who receives a complying part 1 notice of claim may, within the time prescribed under a regulation, add someone else as a contributor for the purposes of this part by giving the person a written notice (contribution notice)— (a) claiming an indemnity from, or contribution towards, the respondent’s liability’. 

Decision

No authorities were before the Court that had considered the meaning of the word ‘indemnity’ in the context of the PIPA.

As such, the Court considered other parts of the legislation noting that:

  • under section 27(1)(b)(ii) reference is made to an ‘insurer’ as a respondent.
  • under section 11(3) reference is made to the fact that an insurer under a ‘relevant insurance policy’ can ‘indemnify’.

Having regard to the way these terms were used in the legislation, the Court was satisfied that reference to‘indemnity’ in section 16(1) could include reference to indemnity under a policy of insurance.

Shapcott highlighted that the Uniform Civil Procedure Rules 1999 (Qld) and the Civil Proceedings Act 2011(Qld) required all matters arising from the same facts to be determined together – so there was no utility in refusing the application.  He also argued it would be of benefit to allow the parties to:

  • make proper investigations.
  • inform themselves of strengths and weaknesses of their cases.
  • participate in a compulsory conference and exchange mandatory final offers.

In a judgment delivered 22 May 2015, Dorney QC DCJ allowed Shapcott’s application.

Considerations

Given this decision, it will be interesting to see how parties manage PIPA claims involving indemnity disputes in the future.  Presumably the approach taken will depend upon the circumstances of each matter and the parties involved.