In a court decision favoring the mining company, the insurer of a specialist in coal mining equipment, whose workers made an error in assessing the height of a bridge resulting in a collision during the transportation of an excavator, has been held accountable.
In the Federal Court, it was revealed that Kerembla Pty Ltd, a business operating in the Hunter region of New South Wales, was engaged in contract mining services for Hunter Valley Operations (HVO).
During the events of May 19, 2021, employees of Kerembla mistakenly assessed the height of an excavator being loaded onto a prime mover and trailer for transportation from the HVO mine site to Kerembla’s headquarters in Muswellbrook. The height of the load was incorrectly measured at 4.3 meters.
While traversing Lemington Road, the employees of Kerembla managed to navigate past a bridge with a clearance of 5 meters. However, when they encountered a bridge with a clearance of 4.9 meters, the excavator collided with it.
HVO, the owner of the bridge, filed a claim against Kerembla for the bridge damage. In response, Kerembla submitted a claim to its insurance provider, XL Insurance Company (trading as Brooklyn Underwriting), under its public and product liability policy.
XL Insurance Company (trading as Brooklyn Underwriting) rejected the claim, citing exclusion clauses that relieved them of liability. These exclusions encompassed activities such as the delivery or collection of goods to or from any vehicle, as well as the loading or unloading of any vehicle.
The discussion revolved around various definitions, including the interpretation of “on any worksite” and “tool of trade.” XL Insurance Company argued that Lemington Road did not qualify as a worksite, and they also contended that the prime mover, trailer, and excavator did not meet the criteria to be considered a tool of trade.
Justice Jackman delivered a ruling that held XL Insurance responsible for indemnifying Kerembla based on the policy terms. According to the ruling, the HVO site qualified as a worksite where work was conducted for or in connection with Kerembla’s business.
XL Insurance argued that Kerembla’s Muswellbrook premises did not fall under this definition, but Justice Jackman found no basis in the definition of “worksite” to support such a limitation.
Furthermore, Justice Jackman highlighted that Lemington Road, the public road connecting the HVO site to Kerembla’s premises, was deemed to be a “worksite” due to its role as the most direct route.
Justice Jackman stated, “As I have mentioned earlier, the prime mover and the trailer were being utilized by Kerembla ‘on any worksite,’ which in this case was Lemington Road at the time of the incident. Consequently, the prime mover and the trailer fulfilled the criteria outlined in the initial sentence of the ‘tool of trade’ definition.”
Source : insurancenews.com.au
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