BB v Helena College Council [2021] WADC 42 (on JADE) saw the plaintiff settle its claim against the defendant school, arising from the conduct of a former teacher Mr Brown, such that the defendant was liable to pay damages to the plaintiff of an amount which had been agreed between them.
What remained to be determined was the defendant’s claims against each of the inusrer third parties..
At [172] QBE said that the plaintiff’s injuries were not the result of an ‘accident or happening’ within the meaning of the insuring clause in the MLC Policy. It said that the defendant in any event failed to take reasonable precautions to prevent those injuries as required by the MLC Policy.
The Court was on the view that the plaintiff’s psychiatric disorders will be as a result of an accident if each can be categorised as ‘an unlooked-for mishap or an untoward event which is not expected or designed’.([225]). At [245] the Court held:
I do not consider that there is sufficient evidence to support the conclusion that the Council deliberately exposed students to, or was indifferent to, the risk of sexual assault by Brown. Inappropriate touching was identified and investigated. Brown was spoken to about his conduct and the students were addressed. Brown then apologised to the students in his classes. There is no evidence to indicate that the Council perceived that there was a risk that Brown would sexually assault students at the School and deliberately incurred that risk.
The Court went on to conclude at [267] that he steps taken by the Council in 1987 were sufficient to satisfy the Reasonable Precautions Condition. QBE was liable to indemnify the Council for the settlement amount of its liability to BB and the defendant’s defence costs of the plaintiff’s action against it.
Similar issues arose in relation to the other two third parties.
The Court concluded that each of the first third party (QBE), the second third party (IAG) and the third third party (Berkshire Hathaway) were liable to the defendant for the whole of the settlement amount of its liability to the plaintiff, and the defendant’s defence costs of the plaintiff’s action against it, subject to any excesses payable by the defendant under the relevant policy or policies.