The issue of whether policy holders can claim on ‘business interruption insurance’ on COVID related interruptions, was determined against insurers, in the NSW Court of Appeal, and on Friday, 25 June 2021, the High Court rejected the insurers leave to appeal. On 28 June, 2021, the law firm: Maurice Blackburn (well known for acting for plaintiffs) posted an article entitled: The decision is in – High Court confirms business interruption insurance exclusion unenforceable. I have been covering selected COVID related matters, following significant parts of the economic relief has been delivered through the tax system (and I thought this was of general interest to a tax oriented readership).
See below, for the article (with some additional comments and references from me)
We have all seen the following headlines over the last several months: “Insurers to fight Court’s decision on Business Interruption Insurance”, “Law firms prepare class actions”, and “Insurance sector could face $1b exposure”.
Whether or not business interruption insurance claims will be met by insurers is clearly an argument worth having – for insurers and insureds alike. Both sides have a lot to lose.
No part of Australia has been immune to the financial impact of the COVID-19 pandemic, with varying levels of government-mandated shutdowns and reduced trading hours affecting businesses nationwide.
Understandably, many businesses turned to their business interruption insurance policies for financial relief and a much-needed cash injection for survival. After all, premiums had been paid, those premiums were accepted and businesses expected to be covered. Insurers, however, denied COVID-19 related business interruption claims, claiming policies were never meant to cover pandemics.
In November 2020, the NSW Court of Appeal disagreed. The Court found that insurers could not deny business interruption insurance claims based on an exclusion clause in policies that referred to the repealed Quarantine Act of 1908. It found that “COVID-19 is not a disease declared to be a quarantinable disease under the Quarantine Act 1908 (Cth) and the exclusion in the HDI Disease Benefit is not enlivened.” [HDI Global Specialty SE v Wonkana No. 3 Pty Ltd  NSWCA 296 (18 November 2020)]
Not willing to give up the fight, insurers sought leave to appeal the decision to the High Court of Australia.
But the fight continues on other fronts
Although a significant roadblock to successfully claiming under a number of policies has now been removed, the High Court’s decision does not mean that insurers will automatically or voluntarily pay claims where the applicable exclusion references the Quarantine Act. Loss must still be established and that loss must be as a consequence of a COVID-19 related disruption.
The insurance industry also has another test case pending before the Federal Court. That case is seeking to clarify, amongst other questions, whether businesses need an actual confirmed case of COVID-19 within close proximity to their business or whether losses can be more broadly linked to state-ordered lockdowns or closed borders. This test case has not yet been heard.
We expect push back from insurers to continue, however, the clarity provided by the High Court’s decision on Friday is welcome news for businesses and strengthens the possible basis for a claim significantly.
Holding Redlich regularly advises on and litigates commercial insurance claims. We have the depth and reputation to take on these matters and are one of the few large commercial law firms not constrained by being on an insurance company legal panel. If you need assistance with reviewing your policy wording and your ability to now pursue a claim, please contact us.