McLennan v Insurance Australia Ltd

(2014) 286 FLR 453; [2014] NSWCA 300

NSW Court of Appeal

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Interrogate

Catchwords

1. Insurance
2. › Fire insurance
3. › Construction of insuring clause
4. › Onus of proof
5. › Whether insured has onus of proving fire not deliberately lit
6. › Whether exclusion for deliberately lit fire is general qualification or specific exception to insurer's promise
1. Insurance
2. › Fire insurance
3. › Construction of policy
4. › Distinction between general qualification and specific exception
5. › Whether qualification applies in all circumstances in which promise applies or only to subset
6. › Munro, Brice & Co v War Risks Association Ltd [1918] 2 KB 78

Quick Take

In a home insurance policy where the insurer's promise is to indemnify against 'loss or damage caused by fire' and a separate clause excludes fires started with the intention of causing damage by the insured or persons with consent, the exclusion operates as a specific exception to the insurer's promise. The insurer bears the onus of proving the exclusion applies; the insured need only prove loss or damage caused by fire. The test is whether the exclusion applies in all circumstances in which the promise applies (general qualification — insured bears onus) or only to a subset of those circumstances (specific exception — insurer bears onus).