Business interruption test case heads to the NSW Court of Appeal

A test case launched by the Insurance Council of Australia (ICA) to examine the application of certain infectious diseases exclusions in business interruption policies will be heard by the NSW Court of Appeal.

ICA CEO Andrew Hall, said, “ICA legal representatives and the plaintiffs’ solicitors provided a joint motion that the combined test case be moved to the NSW Court of Appeal and expedited.

The test case consists of two separate small business claims that were lodged with the Australian Financial Complaints Authority (AFCA) as part of its dispute resolution process. NSW Supreme Court Justice David Hammerschlag granted a joint motion by legal counsels to move the case to the Court of Appeal. The Court of Appeal hearing is due to start on Friday October 2.

The ICA has indicated that AFCA will use the outcomes of the test case in determining complaints arising in respect of business interruption claims with the infectious disease exclusion.

Hall added, “The pandemic and resulting uncertainty have had a devastating impact on Australia, so we are pleased the test case hearing is progressing as quickly as possible, and a judgment can be delivered that provides greater clarity to customers, insurers and regulators in the treatment of pandemic-related claims.”

“In most cases, pandemic exclusions are a threshold issue in Australia given that most insurers have never contemplated coverage for pandemics, have not priced the risk or collected premiums for this risk. Globally, insurers generally regard pandemics as uninsurable risks.”