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Court of Appeal of New Zealand |
Last Updated: 19 January 2012
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CA452/2010
[2011] NZCA 214 |
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BETWEEN DOUGLAS NORMAN SCOTT
Appellant |
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AND SOVEREIGN ASSURANCE COMPANY LIMITED
Respondent |
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Hearing: 5 April 2011
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Court: Harrison, Stevens and Wild JJ
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Counsel: P W Michalik and P P Silva for Appellant
J G Miles QC and B J Burt for Respondent |
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Judgment: 24 May 2011 at 3.00 pm
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JUDGMENT OF THE COURT
____________________________________________________________________
REASONS OF THE COURT
(Given by Stevens J)
Introduction
[1] The appellant, Mr Scott, was granted leave by this Court to argue the question whether the High Court was correct in deciding that this proceeding against the respondent insurer (Sovereign) should be struck out on the basis that it was out of time.[1] In the High Court, Sovereign was successful in its appeal against a refusal by the District Court to strike out a claim brought by Mr Scott under a critical illness insurance policy.[2] The claim related to a stroke suffered by Mr Scott. The Judge in the High Court held that the claim had been commenced after the expiry of the limitation period prescribed by the Limitation Act 1950.
Factual background
The policy
[2] In January 1994, Mr Scott took out a critical illness cover insurance policy with The Prudential Assurance Company New Zealand Ltd (Prudential), Sovereign’s predecessor. The policy provided a benefit of $100,000 in the event of Mr Scott suffering a stroke. The front cover of the policy stated:
Your Critical Illness Cover policy will pay you a lump sum on medical diagnosis of:
After 90 days from the policy’s commencement:
...
- Stroke
[3] The term stroke was defined in the policy as follows:
A cerebrovascular incident producing significant permanent neurological sequelae. This requires evidence of infarction of brain tissue, intracranial or subarachnoid haemorrhage or embolisation from an extra-cranial source. Transient ischaemic attacks, cerebral symptoms due to migraine, cerebral injury resulting from trauma or hypoxia or vascular disorders affecting the eye or optic nerve are specifically excluded.
[4] In terms of claims, the documentation accompanying the policy stated:
4. CLAIMS PROCEDURE
Please read carefully the claims procedure described in your policy and note that claims should be lodged within 30 days of an insured event or first diagnosis of an insured event.
[5] The policy itself dealt with benefits and claims as follows:
1. Benefits
Critical Illness Benefit
1.1 The CRITICAL ILLNESS BENEFIT shown in the Appendix to Schedule 1 will be paid where other conditions in this policy are met if:
(a) After the cover for an Insured has been in force for at least 90 days, the Insured:
...
* has a stroke;
...
1.2 The CRITICAL ILLNESS BENEFIT is a once-only payment for each Insured. If an Insured has or suffers more than one trauma the CRITICAL ILLNESS BENEFIT will be paid only for the first trauma.
1.3 The Insured must survive the trauma by a minimum of 14 days for a CRITICAL ILLNESS BENEFIT to be payable.
...
4. Claims
4.1 To make a claim, you must notify us in writing of a trauma as soon as practically possible. We will then send a claim form for completion and return.
4.2 We must be satisfied of any liability for payment of the CRITICAL ILLNESS BENEFIT and may require the Insured to undergo a medical examination by a doctor of our choice.
4.3 When making a claim, you must provide:
* satisfactory proof of the trauma;
* the policy document;
* proof of ownership of the policy;
* proof of the age of the Insured; and
* any other requirements we consider necessary to properly assess the claim.
[6] The word “trauma” referred to in the claims section of the policy, as well as in clauses 1.2 and 1.3, is defined in the definition section:
trauma: An event described in Condition 1.1 which, if all the other Conditions in this policy are met, will result in the payment of the CRITICAL ILLNESS BENEFIT.
The medical event and its aftermath
[7] On 1 January 1997 Mr Scott suffered a subarachnoid haemorrhage. He submitted a claim to Prudential on 14 January 1997, but the claim was declined on 14 February 1997. Some two years later, on 9 April 1999, Mr Scott wrote to Prudential seeking a review of his medical condition under the policy. He submitted further medical information and contended that his condition now fell within the definition of stroke. A letter from his medical practitioner stated that Mr Scott’s symptoms had not improved over the preceding 12 months. The doctor stated that Mr Scott has “permanent neurological impairment resulting from subarachnoid haemorrhage and his claims should be reconsidered”.
[8] Prudential’s response was to refer Mr Scott to a neurologist, Dr Craven. He provided a report dated 25 June 1999 in which he stated that: “It remains to be determined whether his present symptoms are first significant, and second whether they are permanent.” The report continued:
Regarding the former, whether they are “significant” will have to be determined by reference to his policy, although it is my own feeling that they are not so, bearing in mind that the symptoms are variable (there are days, for example, when he feels reasonably well) and that he is still capable of working 40 hours weekly. Whether or not there are criteria which enable one to quantify “significant” is not known to me, but in general terms I would judge the effect of the symptoms on his working life as being modest, and having no important effect on the activities of daily living. Regarding the latter, I do not think his present symptoms will be permanent. Certainly, they have persisted for longer than is usual, but recovery after a subarachnoid haemorrhage is analogous to recovery following a head injury, and can certainly continue for two-three years, recovery progressively slowing. If further assessment is to be required regarding this matter, it should not be undertaken for 12 months.
(Emphasis added.)
[9] On the basis of Dr Craven’s report, Prudential (which had become Colonial Life (NZ) Ltd) stated that it was “unable to accept your claim on the basis of the report from Dr Craven”. The declinature letter of 16 July 1999 further added:
The examination by Dr Craven was essentially normal as was the CT scan. There was no evidence of significant neurological impairment and any symptoms that may possibly relate to the stroke are not likely to be permanent.
[10] In August 1999 Mr Scott made an unsuccessful attempt to obtain assistance from the Insurance and Savings Ombudsman. However, there was no further communication between Mr Scott and the insurer until 3 April 2002 when Mr Scott cancelled the policy by writing to the insurer (by now Sovereign) stating: “Please cancel this policy, as I no longer need the same.”
[11] In August 2005 Mr Scott made further contact with Dr Craven and received correspondence from him regarding his then symptoms and discussing whether they were significant and permanent within the policy wording. Thereafter, on 20 September 2005, Mr Scott wrote to Sovereign expressing concerns about his claim. We have not seen the detail of the evidence submitted to Sovereign at that time.
[12] However, Sovereign took the matter up and referred what was described as a “complaint” to its Complaints Committee. Sovereign then wrote to Mr Scott on 14 October 2005 stating:
Please be advised that your complaint was referred to our Complaints Committee, a forum that is made up of representatives from different areas of Sovereign. The outcome of that meeting was that we were unable to pay your claim for Critical illness benefit because you did not meet the policy [wording’s] criteria for payment.
We understand that this may not be the outcome you were expecting and that you wish to take the matter further to the Insurance & Savings Ombudsman. For the purposes of that scheme I can advise that we have reached “deadlock” and you must refer your complaint to her office within 2 months of the date of this letter.
[13] Mr Scott commenced a proceeding against Sovereign in the District Court on 27 September 2006 claiming that he was entitled to be paid the benefit under the policy. Sovereign then applied in the District Court to strike out Mr Scott’s claim.
District Court decision
[14] Judge Cooper declined to strike out Mr Scott’s claim.[3] The Judge considered that it was a question of fact whether Mr Scott’s subarachnoid haemorrhage had produced significant permanent neurological sequelae as required by the definition in the policy. The Judge stated:[4]
A state of affairs which, for the time being, is temporary or regarded as temporary may become permanent. Again this is a question of fact. To accept the defendant’s submission would be to say that once something regarded as temporary becomes permanent, it must be seen as always having been permanent.
[15] The Judge considered that Dr Craven’s report contemplated that there was at least the possibility that Mr Scott’s symptoms might become permanent. Whether, and if so when, that state of affairs arose were matters of fact to be decided at trial. If that state of affairs occurred within the period of six years immediately preceding the filing of proceedings in the District Court, then the claim would have been brought within time for limitation purposes. Given that the District Court proceeding was filed on 27 September 2006, and assuming a six year time limit for contract claims under s 4 of the Limitation Act, Mr Scott would need to establish that his cause of action accrued on or after 28 September 2000.
High Court decision
[16] Sovereign appealed to the High Court. The case came before Allan J who relied upon and applied the decision of Associate Judge Abbott in Arnold v American International Assurance Company Ltd.[5] Allan J determined that time would run from “the date on which the stroke occurred”, namely, 1 January 1997.[6] Since Mr Scott’s medical evidence was that his symptoms were significant and permanent by 1997, the claim was out of time.
[17] In Arnold, the Associate Judge had relied on a line of English authorities for the proposition that an insurance policy is to be construed as insurance against the occurrence of an insured event and that the occurrence of such an event is treated as equivalent to a breach of contract by the insurer.[7] Accordingly, in the absence of policy terms to the contrary, the limitation period commences as soon as the insured event occurs, even though no claim has been made, let alone declined. Problems in proving a claim or taking steps to establish an entitlement do not affect the operation of the Limitation Act.
[18] Because of their importance to the reasoning of Allan J, we set out parts of the passages from Associate Judge Abbott’s judgment relied upon:
[13] The cause of action under a non-liability insurance policy accrues when the insured event occurs, unless the terms of the policy provide that liability will not arise until a claim is made or certain other conditions are satisfied: Chitty on Contracts (Vol 1, 30th Edition 2008, para 28-050).
[14] In the absence of policy terms to the contrary, the limitation period begins to run as soon as the insured event occurs even though no claim has been made at that time. This is because the occurrence of the insured event is treated as equivalent to a breach of contract by the insurer: Halsburys Laws of England Vol 25, 2003 reissue, para 184 (presumably by failing to hold the insured harmless in respect of the relevant loss).
[15] Counsel for AIG submitted that these statements of principle were drawn from a long line of authority, which has been followed by the insurance industry over many years. He referred to two recent English authorities, in particular: Virk v Gan Life Holdings Plc [2000] Lloyds Rep IR 159 (CA) and Callaghan v Dominion Assurance Co Limited [1997] 2 Lloyds LR 541, in both of which the Court had to decide whether the cause of action had arisen within the limitation period.
...
[18] When construing policy terms with a view to determining when the insurer’s liability commences, the Courts have distinguished between matters affecting commencement of liability, and matters going to the proof of the liability and the entitlement to pursue a claim in respect of it. The operation of the Limitation Act is not suspended pending such proof, or taking of steps to establish entitlement to claim, because these are matters that lie within the power of the claimant. The law does not defer commencement of liability for such matters, as to do so would be tantamount to allowing a claimant to postpone the operation of the Limitation Act: MacGillivray on Insurance Law 9th Ed para 24-18; Coburn v Colledge [1897] 1 QB 702,709; Monckton v Payne [1899] 2 QB 603,606; Callaghan at p 546; and Virk at p 22.
[19] Leave to appeal was declined by Allan J.[8] In summary, he concluded that any breach occurred no later than 14 February 1997, when Sovereign declined Mr Scott’s claim on the ground that there were no permanent sequelae. The Judge rejected Mr Scott’s argument that the insurer would only be in breach if it declined a claim in the face of available medical evidence capable of establishing his case. The Judge considered that this appeared to amount to “a thinly disguised argument for a reasonable discoverability exception to ordinary limitation principles”.[9] Allan J considered that the case did not fall within any of the recognised exceptions to the principle that accrual under the Limitation Act is an occurrence-based concept rather than a knowledge-based one.
Submissions on appeal
[20] For Mr Scott, Mr Michalik repeats the submissions made at the leave hearing before this Court. His essential argument is that the application of the Limitation Act to the particular circumstances of this case involves factual questions for determination at trial. This is a case that fell within the usual rules applying to an application to strike out and it cannot be said that the proceeding discloses no reasonable cause of action.
[22] For Sovereign, Mr Miles QC supports the reasoning of Allan J, including the application of the English line of cases. In addition Mr Miles submits that any breach of contract occurred more than six years before Mr Scott filed his claim. This is because the sequelae to Mr Scott’s subarachnoid haemorrhage have been present since he suffered the event on 1 January 1997. Consequently, if the sequelae are significant and permanent (which Sovereign denies), that has been the position since 1 January 1997.
[23] Mr Miles submits that to the extent that Sovereign breached its contract (which it denies), any breach would have occurred:
- (a) on 14 February 1997 when it first declined Mr Scott’s claim; or
- (b) at the latest, on 16 July 1999 when Sovereign again declined Mr Scott’s claim, despite his having put forward medical evidence to support his claim.
[24] Mr Miles submits that Mr Scott is effectively attempting to argue “reasonable discoverability” of the permanence of the sequelae, which is not available as a result of the judgment of the Supreme Court in Murray v Morel & Co.[13] Further, Mr Miles submits that there was no breach of contract by Sovereign between 28 September 2000 (six years before Mr Scott filed his proceeding) and 3 April 2000, when he cancelled his policy. As a final argument Mr Miles submits that Mr Scott’s claim is for bodily injury and is subject to a two year limitation period pursuant to s 4(7) of the Limitation Act. Under that provision Mr Scott’s claim is time-barred.
Evaluation
[25] The principles applicable to the jurisdiction to dismiss a proceeding where it discloses no reasonable cause of action are well settled. They are conveniently summarised by this Court in Attorney-General v Prince as follows:[14]
A striking-out application proceeds on the assumption that the facts pleaded in the statement of claim are true. That is so even [though] they are not or may not be admitted. It is well settled that before the Court may strike out proceedings the causes of action must be so clearly untenable that they cannot possibly succeed (R Lucas & Son (Nelson Mail) Ltd v O’Brien [1978] 2 NZLR 289 at pp 294 – 295; Takaro Properties Ltd (in receivership) v Rowling [1978] 2 NZLR 314 at pp 316 – 317); the jurisdiction is one to be exercised sparingly, and only in a clear case where the Court is satisfied it has the requisite material (Gartside v Sheffield, Young & Ellis [1983] NZCA 37; [1983] NZLR 37 at p 45; Electricity Corporation Ltd v Geotherm Energy Ltd [1992] 2 NZLR 641); but the fact that applications to strike out raise difficult questions of law, and require extensive argument does not exclude jurisdiction (Gartside v Sheffield, Young & Ellis).
[26] There is no dispute that the Court has power to strike out a claim where the pleaded cause of action is statute-barred.[15] The test is succinctly stated by Tipping J in Murray as follows:[16]
[33] I consider the proper approach, based essentially on Matai, is that in order to succeed in striking out a cause of action as statute-barred, the defendant must satisfy the Court that the plaintiff’s cause of action is so clearly statute-barred that the plaintiff’s claim can properly be regarded as frivolous, vexatious or an abuse of process. If the defendant demonstrates that the plaintiff’s proceeding was commenced after the period allowed for the particular cause of action by the Limitation Act, the defendant will be entitled to an order striking out that cause of action unless the plaintiff shows that there is an arguable case for an extension or postponement which would bring the claim back within time.
The insured event
[27] Applying this test, the starting point is the critical illness cover policy taken out by Mr Scott. Sovereign’s primary obligation under the policy is to provide Mr Scott with an agreed benefit on the occurrence of an insured event. The critical question then is to determine what is the “insured event” and when it occurred. We consider that it is important to consider the definition of stroke. Under this policy it is not merely the occurrence of a “cerebrovascular incident”. That is the qualifying cause. The claimant must provide medical evidence of one of four events including, materially, a subarachnoid haemorrhage. However, before such an incident entitles a party to claim under the policy, it must have the effect of “producing significant permanent neurological sequelae” (“sequelae” meaning consequences). Other examples of medical events, such as transient ischaemic attacks, are specifically excluded.
[28] We also refer to the use in the policy of the word “trauma”. The word trauma is defined as: “An event described in Condition 1.1 which, if all the other Conditions in this policy are met, will result in the payment of the CRITICAL ILLNESS BENEFIT.” Trauma is mentioned in clauses 1.2 and 1.3 as part of the description of a critical illness benefit, as well as in the context of making a claim under clauses 4.1 and 4.3 requiring the insured to notify the insurer of a trauma as soon as practicably possible. If a trauma (as defined) has been suffered by an insured, that may or may not be or become an insured event. In the present case, that will depend on whether, and if so when, an insured event occurred.
[29] Under the terms of the policy, we consider that an insured event, such as a “stroke”, may not necessarily arise immediately upon the occurrence of a trauma. Even to come within the definition of trauma, it is still necessary for the relevant event to fall within the scope of Condition 1.1 and meet all the other conditions in the policy including (importantly) the definition of a stroke, namely, a cerebrovascular incident producing significant permanent neurological sequelae. This would require that the consequences of the stroke have the necessary characteristics of permanence and significance such that they bring the trauma within the definition of stroke.
[30] In the circumstances as presently known (and in the absence of trial evidence on the point), we consider it is arguable that the insured event did not occur as a matter of fact until such time as the neurological sequelae arising from the stroke that Mr Scott suffered on 1 January 1997 became both significant and permanent. “Permanent” requires that symptoms continue on a lasting basis. Where an insured like Mr Scott has suffered a cerebrovascular incident such as a subarachnoid haemorrhage, the required symptoms of significance and permanence may not arise until some years after the initial event.
[31] Some medical evidence following the subarachnoid haemorrhage suggests that the cerebrovascular incident of 1 January 1997 did not produce significant permanent neurological sequelae at that time. It was thought by one medical practitioner that the sequelae suffered “are likely to resolve over 3-6 months”. However, a little over a year later, Mr Scott received advice from a medical practitioner that his symptoms “appear to be permanent and result from the subarachnoid haemorrhage”. It was at this point that Sovereign asked Dr Craven to examine Mr Scott. Following the examination, Dr Craven opined that it “remains to be determined whether his present symptoms are first significant, and second whether they are permanent”. He was not prepared to offer a firm view on the question of significance. He said that his “own feeling [was] that they are not so”. But he added: “Whether or not there are criteria which enable one to quantify ‘significant’ is not known to me”.
[32] Dr Craven also considered the question of permanence stating:
... I do not think his present symptoms will be permanent. Certainly, they have persisted for longer than is usual, but recovery after a subarachnoid haemorrhage is analogous to recovery following a head injury, and can certainly continue for two-three years, [recovery] progressively slowing. If further assessment is to be required regarding this matter, it should not be undertaken for 12 months.
[33] We consider that this evidence arguably supports the view that symptoms, which Dr Craven in June 1999 thought to be temporary, might well in the future support a medical diagnosis of being significant and permanent such as would mean that the cerebrovascular incident suffered by Mr Scott qualified as a stroke. Determining if and when the sequelae became significant and permanent would depend on the expert evidence called at trial.
[34] In this context, we note that the front cover of the critical illness policy specifically provided that a lump sum was to be paid on “medical diagnosis of: ... a stroke” (emphasis added). We do not see these necessary features of a cerebrovascular incident as being matters pertaining strictly to proof following an insured event, as submitted by Mr Miles. Rather we consider that it is arguable that these requirements of significance and permanence comprise necessary qualifying features before a trauma could be said to be characterised as an insured event by falling within the various elements required by the definition of stroke.
When did the cause of action accrue?
[35] The next question is when did the cause of action accrue for limitation purposes. There is no dispute that a cause of action accrues when everything has happened entitling a plaintiff to judgment on the cause of action asserted.[17] In the context of a policy such as the present, Mr Michalik placed reliance on the Cigna Insurance case.[18] The claim in that case concerned an attempt to recover the amount payable in respect of permanent total disablement. Cover under the policy applied to disablement by bodily injury which lasted for at least 12 months and entirely prevented the insured from engaging in any occupation for which he was fitted by reasons of education, training or experience for the remainder of his life. As to when, for limitation purposes, it could be said that this stage of affairs occurred, Malcolm CJ (Kennedy J concurring) held that there were three elements required for the definition to be satisfied. With respect to the third of these elements (relating to the insured being prevented from engaging in any occupation), he noted the possibility that this, as a matter of fact, may not become apparent for some indefinite period of time. Furthermore, he held that the relevant date is the date upon which it could reasonably be concluded that the plaintiff was entirely prevented from engaging in any occupation for which he was relevantly fitted for the remainder of his life. That would also be identified as determinative of the date upon which the cause of action would accrue. Third, and critically, there must be a diagnosis of permanent total disablement.
[36] We consider the same reasoning applies here. At trial the District Court may find that the neurological sequelae following Mr Scott’s cerebrovascular incident did not become significant and permanent until a date on or after 28 September 2000, that being six years before Mr Scott commenced his proceeding. Accrual of Mr Scott’s cause of action could be either from that date or as late as 14 October 2005, when Sovereign wrote to Mr Scott advising him of the outcome of the referral to its Complaints Committee. Of course to prove Sovereign’s breach Mr Scott would have to satisfy a Court at trial that, first, his neurological sequelae became significant and permanent after 28 September 2000 and, second, the insurer then declined to meet its contractual obligation to pay him a lump sum. The first element would run counter to his medical evidence available in 1997 and 1999 that by then both qualifying conditions of significance and permanence had been met.
[37] In this respect Mr Scott had notified Sovereign of his trauma promptly in January 1997. He had continued to advance his claim and had, in June 1999 and subsequently (even up to August 2005), sought to obtain up-to-date medical diagnosis of his symptoms. When he again pressed his claim in mid-2005 he considered that the then available medical diagnosis supported the existence of an insured event.
[38] We agree with Mr Michalik that the English cases relied upon by Allan J do not assist in the analysis. While these cases may be good law in the context of English insurance jurisprudence, we do not consider that they are helpful in the context of a New Zealand contingency insurance policy for a fixed benefit payable under a critical illness policy. First, we emphasise that these cases are English and not New Zealand case law. Second, in our view the English authorities are inapplicable to this policy because its terms require that distinct conditions are met before a cerebrovascular incident may qualify as an insured event comprising a stroke.
[39] We consider that a determination as to whether, and if so when, the neurological sequelae consequent on Mr Scott’s cerebrovascular incident became significant and permanent is a determination that can only be made on the evidence at trial.
[40] An issue may arise at trial as to the relevance, if any, of the cancellation by Mr Scott of the policy on 3 April 2002. We refer to possible relevance because it may or may not be material to his rights of claim under the policy and because Sovereign did not raise the issue of cancellation when Mr Scott wrote to it in September 2005, expressing concern about his claim and submitting further evidence about his condition. Rather, Sovereign referred Mr Scott’s complaint to its Complaints Committee which ruled, on the basis of the evidence then available, that Mr Scott “did not meet the policy [wording’s] criteria for payment”. It suffices to note that it is arguable that the only effect of the cancellation was to exclude future trauma.
[41] Finally, with respect to the respondent’s reliance on the application of a two year limitation period under s 4(7) of the Limitation Act, we consider it arguable that this claim ought not to be characterised as a claim for bodily injury. Rather, it is a claim for alleged breach of an insurance policy where a fixed benefit is payable in respect of a critical illness. In any event, determination of this question is a matter for trial.
Result
[42] We are satisfied that this is not an appropriate case in which to strike out Mr Scott’s claim under the policy. As a result we conclude that the High Court was incorrect to strike out Mr Scott’s proceeding on the ground that it was out of time. The appeal is allowed and the case is remitted to the District Court for hearing.
[43] The respondent must pay the appellant’s costs for a standard appeal on a band A basis and usual disbursements. The appellant is also entitled to costs in the High Court plus disbursements fixed by the Registrar. If the parties cannot agree, costs are to be determined by the High Court Judge.
Solicitors:
Knight Coldicutt, Wellington for
Appellant
Chapman Tripp & Co, Auckland for Respondent
[1] Scott v Sovereign Assurance Company Ltd [2010] NZCA 282 [Sovereign (CA)].
[2] Sovereign
Assurance Company Ltd v Scott HC Rotorua CIV-2008-463-909, 30 September 2009
[Sovereign
(HC)].
[3] Scott
v Sovereign Assurance Company Ltd DC Taupo CIV-2006-069-285, 21 November
2008.
[4] At
[24].
[5] Arnold v American International Assurance Company (Bermuda) Ltd trading as AIG Life HC Auckland CIV-2008-404-6987, 4 June 2009.
[6] Sovereign (HC) at [34].
[7] Virk v Gan
Life Holdings Plc [2000] Lloyd’s Rep IR 159 (CA) and Callaghan v
Dominion Assurance Co Ltd [1997] 2 Lloyd’s Rep 541
(QB).
[8]
Sovereign Assurance Company Ltd v Scott HC Rotorua CIV-2008-463-909, 26
February 2010.
[9]
At [11].
[11] Cigna Insurance Asia Pacific Ltd v Packer [2000] WASCA 415, (2000) 23 WAR 159.
[12] Penrith
City Council v Government Insurance Office of New South Wales (1991) 24
NSWLR 564
(SC).
[13]
Murray v Morel & Co Ltd [2007] NZSC 27, [2007] 3 NZLR
721.
[14]
Attorney-General v Prince [1998] 1 NZLR 262 at 267.
[15] Ronex
Properties Ltd v John Laing Construction Ltd [1983] QB 398 (CA) and Matai
Industries Ltd v Jensen [1989] 1 NZLR 525
(CA).
[16]
Murray v Morel & Co Ltd at
[33].
[17]
Murray v Morel & Co Ltd at
[69].
[18]
Cigna Insurance Asia Pacific Limited v Packer [2000] WASCA 415, (2000)
23 WAR 159.
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