Monthly Archives: September 2020

Brief overview: business interruption insurance

A recent test case in the High Court of the Business and Property Courts of England & Wales has given food for thought not only for an international context, but also for New Zealand. The decision carries importance because it discusses the applicability of business interruption insurance policies in a COVID-19 context.

The test case The Financial Conduct Authority v Arch and Others [2020] EWHC 2448 (Comm) was decided in favour of the Financial Conduct Authority (FCA). Generally, it found for the FCA in respect of coverage triggers across several policies including clauses dealing with “denial of access”, “disease”, “hybrid”, and “public authority”.[1]

The Court also, expectedly, commented on entitlement of policyholders. The ruling was that most businesses that had business interruption policies, and had to close because of COVID-19, were entitled to compensation, subject to policy limits.[2] The extent of the compensation was to put the businesses in the position they would have been in had COVID-19 not occurred.[3] In other words, a return to the status quo and, generally, the position pre-COVID-19.

This test case has garnered attention within insurance circles.

Closer to home, the Insurance Council of Australia (ICA) have initiated a test case to determine the applicability of specific infectious diseases exclusions in businesses interruption insurance policies.

This is a development to follow closely.

In New Zealand, a number of organisations with business interruption insurance were unable to claim in the context of the lockdowns. This was because policies, generally, only offered coverage for physical damage to property. Businesses in New Zealand with policy wording that covers public authority restrictions on entering premises may take inspiration from the UK test case and the upcoming test case in Australia. This is a potential occurrence space to watch out for.

With COVID-19 continuing to affect businesses to varying degrees, some business owners will have thought about potentially claiming insurance. The UK test case and the upcoming test case in Australia display a certainty and clarity-seeking intention by relatively significant stakeholders in the insurance industry. In similar vein, it would be unsurprising to see developments in this respect within New Zealand. If such developments fructify, one would be paying very close attention.

Copyright Steve Keall, all rights reserved, 2020

[1] The Financial Conduct Authority v Arch and Others [2020] EWHC 2448 (Comm) at [414], [531], and [532].

[2] At [386] and [475].

[3] At [351], [386], and [475].

The Unsettling Settlement

Southern Response Earthquake Services Limited v Dodds [2020] NZCA 395 (7 September 2020) is a recent decision of the Court of Appeal.


The Dodds’ house sustained damage beyond economic repair in the February 2011 earthquake in Christchurch. [1] The Dodds had insured this house on a replacement basis with Southern Response Earthquake Services Ltd (SRES), who were previously known as AMI Insurance Ltd. [2] The insurance policy offered the Dodds several options to settle their claim. Out of the options, the Dodds’ chose to buy another house. Under the policy, SRES were to pay the cost of buying that other house to the extent of the cost of “rebuilding your house on its present site.” [3] This cost was to be determined by an estimate of what the cost would be to rebuild the house on the present site.

Arrow International (Arrow) provided the Dodds’ with an Abridged Detailed Repair/Rebuild Analysis (Abridged DRA), which stated a total figure of $895,937.78 for House & Outside EQC Scope (including GST). [4] SRES advised the Dodds that if they exercised the option to buy another house, the maximum amount available to them was $894,937. [6]

The Dodds discovered that a more comprehensive DRA (Complete DRA) had been prepared by Arrow and provided to SRES. [6] The Complete DRA indicated that SRES would incur additional costs of $205,000. [7] SRES neither disclosed the Complete DRA to the Dodds before settlement was reached nor did they tell the Dodds that the amount in the Abridged DRA excluded certain items of cost that SRES would incur if the house was rebuilt on its existing site. [8] SRES also did not explain why it considered that those items were not relevant when determining the maximum payable under the settlement option the Dodds chose. [9]


The Dodds and St Martins Trustee Services Ltd sued SRES successfully in the High Court recovering the difference of approximately $205,000. [10] SRES were found to have been misleading and deceptive in settling the claim with the Dodds. [11]

SRES appealed the latter finding to the Court of Appeal. [12]

The issues on appeal were as follows: [13]


(a)    What representations (if any) did SRES make to the Dodds?

(b)   Were those representations false?

(c)    Were the Dodds induced to enter into the Settlement Agreement by those representations?

(d)   What damages are the Dodds entitled to under s 35 of the Contract and Commercial Law Act 2017 (CCLA)? Can the Dodds recover general damages for inconvenience and stress?

Fair Trading Act 1986 (FTA)

(e)    Did SRES engage in misleading and deceptive conduct in breach of s 9 of the FTA?

(f)     Did the Dodds suffer loss or damage because of any misleading conduct on the part of SRES?

(g)    What remedy should be awarded under s 43 of the FTA?

Breach of duty of good faith

(h)   Did SRES owe a duty of good faith to the Dodds in connection with the settling their claim?

(i)     If SRES owed a duty of good faith to the Dodds, was that duty breached?

(j)     What is the appropriate remedy in respect of any such breach?

The Court of Appeal allowed SRES’s appeal in part. The damages awarded to the Dodds in the High Court were reduced. The Court found that SRES made misrepresentations to second, the absence of any other report from Arrow that stipulated a different rebuild cost. [14] The Court affirmed that the Dodds’ loss was the difference between the true value of their rights under the policy and the sum they were persuaded to accept in exchange for surrendering these rights; a loss recoverable under both the CCLA and the FTA. [15]


A reasonably honest opinion held by an insurer regarding the insured’s entitlement under a policy does not necessarily make the insurer liable for a claim in dishonesty or bad faith. If SRES had shown the Complete DRA to the Dodds, it would be unlikely for the Dodds to have had a legal claim.

The extent of the insurer’s duty to disclose information must be limited to the disclosure of material facts. This duty is not boundary-less.

In terms of the duty of good faith, the Court commented that it is likely more productive to consider what obligations are implied by law or that can be implied in fact in the context of particular dealings between the insurer and the insured. [16] The Court had recently affirmed this approach in Taylor v Asteron Life Ltd. [17]

Copyright Steve Keall, all rights reserved, 2020

[1] Southern Response Earthquake Services Limited v Dodds [2020] NZCA 395 (7 September 2002) at [1].

[2] At [1].

[3] At [1].

[4] At [2].

[5] At [2].

[6] At [4].

[7] At [4].

[8] At [4].

[9] At [4].

[10] At [6].

[11] At [6].

[12] At [8].

[13] At [107].

[14] At [9].

[15] At [10].

[16] At [194].

[16] Taylor v Asteron Life Ltd [2020] NZCA 354.