Knowing me, knowing you: What’s the matter with s 21(1)(B) of the Insurance Contracts Act 1984 (Cth)?

The objective test of non-disclosure in s 21(1)(b) of the Insurance Contracts Act 1984 (Cth) remains elusive in its meaning and operation. Despite the time of assessment being prior to entry into a contract of insurance, disputes over an insured’s non-disclosure inevitably arise after a claim is mad...

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Main Author: Allison, Simon
Format: Journal Article
Published: LexisNexis 2023
Online Access:http://hdl.handle.net/20.500.11937/93983
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author Allison, Simon
author_facet Allison, Simon
author_sort Allison, Simon
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description The objective test of non-disclosure in s 21(1)(b) of the Insurance Contracts Act 1984 (Cth) remains elusive in its meaning and operation. Despite the time of assessment being prior to entry into a contract of insurance, disputes over an insured’s non-disclosure inevitably arise after a claim is made, when investigations uncover matters an insurer argues were relevant to its decision to accept the risk of a contract of insurance, and the circumstances on which it does. The test in s 21(1)(b) did away with the common law prudent insurer standard of materiality. Despite this, resolution of questions of non-disclosure can be complex exercises in inference drawing, and courts are reticent to give weight to hindsight evidence of insurers. Complex fact scenarios involving the disclosure of opinions and allegations cases have put into question the practical utility of settled principles on the application of the test. Recent cases demonstrate a move towards a broader consideration of circumstances relevant to s 21(1)(b), providing a more flexible construction to resolve conceptual issues that the legislation is otherwise silent on.
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spelling curtin-20.500.11937-939832024-01-23T01:38:33Z Knowing me, knowing you: What’s the matter with s 21(1)(B) of the Insurance Contracts Act 1984 (Cth)? Allison, Simon The objective test of non-disclosure in s 21(1)(b) of the Insurance Contracts Act 1984 (Cth) remains elusive in its meaning and operation. Despite the time of assessment being prior to entry into a contract of insurance, disputes over an insured’s non-disclosure inevitably arise after a claim is made, when investigations uncover matters an insurer argues were relevant to its decision to accept the risk of a contract of insurance, and the circumstances on which it does. The test in s 21(1)(b) did away with the common law prudent insurer standard of materiality. Despite this, resolution of questions of non-disclosure can be complex exercises in inference drawing, and courts are reticent to give weight to hindsight evidence of insurers. Complex fact scenarios involving the disclosure of opinions and allegations cases have put into question the practical utility of settled principles on the application of the test. Recent cases demonstrate a move towards a broader consideration of circumstances relevant to s 21(1)(b), providing a more flexible construction to resolve conceptual issues that the legislation is otherwise silent on. 2023 Journal Article http://hdl.handle.net/20.500.11937/93983 LexisNexis restricted
spellingShingle Allison, Simon
Knowing me, knowing you: What’s the matter with s 21(1)(B) of the Insurance Contracts Act 1984 (Cth)?
title Knowing me, knowing you: What’s the matter with s 21(1)(B) of the Insurance Contracts Act 1984 (Cth)?
title_full Knowing me, knowing you: What’s the matter with s 21(1)(B) of the Insurance Contracts Act 1984 (Cth)?
title_fullStr Knowing me, knowing you: What’s the matter with s 21(1)(B) of the Insurance Contracts Act 1984 (Cth)?
title_full_unstemmed Knowing me, knowing you: What’s the matter with s 21(1)(B) of the Insurance Contracts Act 1984 (Cth)?
title_short Knowing me, knowing you: What’s the matter with s 21(1)(B) of the Insurance Contracts Act 1984 (Cth)?
title_sort knowing me, knowing you: what’s the matter with s 21(1)(b) of the insurance contracts act 1984 (cth)?
url http://hdl.handle.net/20.500.11937/93983