Contact: Michael Bath, Special Counsel and Thomas Byrne, Associate; Carter Newell (Queensland, Australia)
Introduction
It is an often repeated doctrine in insurance disputes that the insured bears the burden of proving that the coverage clause is triggered, while insurers must prove that an exclusion clause applies. In relation to the latter, the High Court in Wallaby Grip Ltd v QBE Insurance (Aust) Ltd1 stated that it is ‘well accepted’ that ‘the insurer must prove that a loss falls within an exception’.
While in practice it is typically not difficult to apply the doctrine, disputes may arise (and the burden may be reversed) if the exclusion can be treated as wholly qualifying the insuring promise. One such dispute was recently considered by the New South Wales Court of Appeal in McLennan v Insurance Australia Ltd.2
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