Where an employer's indemnity policy is not in evidence, the onus of proving the extent of cover lies on the plaintiff asserting the contract, not on the insurer. The amount and subject of cover are essential terms of the insurance contract, not exceptions or limitations. In the absence of evidence of greater cover, the insurer's liability is limited to the statutory minimum ($40,000 under the Workers Compensation Act 1926). Di Cecco v Mercantile Mutual Insurance, which held the insurer bore the onus, should not be followed. However, Brereton J's dissent provides an alternative analysis that where the insurer admits the contract of indemnity, a sum insured operates as a limitation on the primary obligation and the insurer bears the onus of proving it.
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