Mr Hall had obtained a default judgment for damages against Newall for injury caused by exposure to asbestos while he was employed by them between 1967 and 1974. National Employers’ Mutual (NEM) was identified as an insurer that may have provided cover to Newell during the relevant period and AGF accepted that it was the successor to the relevant liabilities of NEM. Ronald Walker QC, sitting as a deputy High Court judge, identified that the only issue before the court was whether Mr Hall could prove that NEM did provide employers’ liability insurance to Newall.
The judge held that the following were conclusive in his finding for AGF:
- no employers’ liability or public liability policies could be found following a search of both paper and electronic records; and
- Mr Hall’s key witness, the insurance broker, while truthful was being asked to recall “mundane events which happened 40 or more years ago with scant documentation to help him”
The judge held that the decisive indicator was the absence of any record on the computer system used by the insurer.
While this case does not break new ground in terms of claims or coverage, of note was the reliance of the judge on the records of the insurer. In this case, AGF could demonstrate that all new policies written by NEM from 1980 onwards were placed on computer and that existing policies were also transferred to computer. Record management is clearly an important area for insurers when contesting claims especially those that may arise many years after the policy is written.
