In a third-party claim under s 51 of the Insurance Contracts Act 1984 (Cth), the insurer bears the onus of proving that an exclusion clause for deliberately caused damage applies; the third-party claimant need only prove circumstances falling within the primary promise of indemnity. Where the manner of driving is consistent with both deliberate conduct and inattention or fatigue, and the circumstantial evidence of motive for suicide is equivocal, the insurer's onus is not discharged. The fact that a vehicle was on the incorrect side of the road at the time of collision provides a secure foundation for an inference of negligence in the absence of evidence supporting inevitable accident.
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