Category Legal Affairs

Covid-19 business interruption Australian judgment mostly favours insurers

14 October 2021 Donald Dinnie, Norton Rose Fulbright
Donald Dinnie, Norton Rose Fulbright

Donald Dinnie, Norton Rose Fulbright

In this, second, Australian test case for business interruption claims relating to Covid-19 the court said that “[A] policy of insurance is assumed to be an agreement which the parties intend to produce a … businesslike interpretation … …a construction that avoids capricious, unreasonable, inconvenient or unjust consequences, is to be preferred where the words of the agreement permit” and that “ …. no court is authorised to attribute a different meaning to the words of a policy simply because the court regards the meaning as otherwise working a hardship on one of the parties.”

The judgment largely comes to different conclusions and findings to that of the South African Covid-19 cases and the United Kingdom test cases in dealing with questions of the definition of a disease; proximity of an outbreak to a business; prevention of access to premises due to a government mandate; coverage on policies that contain a hybrid of those wordings and adjustment on “wordings on loses”.

Among other things the court said that prevention of access to premises due to government mandate did not apply due to the government action not being specifically in response to an outbreak at the venue.  Each case of Covid was not deemed to be the cause of government action. State governments acted as they did, not in response to an individual case of Covid, but to the presence of Covid in the community. The court said it was unable to reach any conclusion that the action of an authority was caused by, resulting from, or was in consequence of an occurrence or outbreak of Covid-19 at a specific location or within a specified area.

The judgment includes a consideration of the questions of insured peril, causation, proximate cause, uninsured peril, the same underlying cause and fortuity.

Significantly the court also held that certain government subsidies and support payments should be applied in determining loss.

The court came to the same conclusion as the South African and UK judgments in respect of the interpretation and application of the trends clause.

The judgment is subject to an expedited appeal to be heard in November 2021.

The judgment, which can be viewed here, is extremely lengthy, some 386 pages in length, but warrants detailed study.

First published by: Financial Institutions Legal Snapshot

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