Road
Australian decisions
Barrie Toepfer Earthmoving and Land Management Pty Ltd v CGU
Insurance Ltd[2016] NSWCA 67
The NSW Court of Appeal recently determined that the onus of
proof is on insurers to prove an insured's recklessness if they
wish to rely upon an exclusion in a commercial motor vehicle
insurance policy for damage caused by recklessness and breach of a
condition to take reasonable care and comply with statutory
obligations.
On 15 April 2003, two employees of Barrie Toepfer Earthmoving
and Land Management Pty Ltd were transporting a 16 tonne excavator
from North Arm Cove to Wyee in New South Wales by prime mover and
low loader. The vehicle was driven by Mr Luck and in the passenger
seat was Mr Wyborn, the operator of the excavator. As the vehicle
was driven over Hexham Bridge near Newcastle, the arm of the
excavator struck a number of the overhead sections of the bridge,
causing more than $12.8 million worth of damage.
