Insurance Law Monthly

The law has, in the context of aggregation clauses, drawn a clear distinction between “events” (the what) and “original causes” (the why). To date most of the cases have concerned events and relatively few have involved the definition of originating cause. The judgment of HHJ Pelling QC in Spire Healthcare Ltd v Royal & Sun Alliance Insurance plc [2020] EWHC 3299 (Comm); [2021] Lloyd’s Rep IR Plus 7 contains an excellent analysis of the latter.

In Entyce Food Ingredients Pty Ltd v CGU Insurance Ltd [2020] VSC 757 a policy covering product liability contained exclusions for recall costs and prior damage. The question for Connock J in the Supreme Court of Victoria was whether either of those exclusions were applicable to a quantity of berries contaminated by a virus.

In HDI Global Specialty SE v Wonkana No 3 Pty Ltd [2020] NSWCA 296, a test case involving two policies more or less identically worded, the New South Wales Court of Appeal considered exclusions from cover for losses arising from infectious diseases identified by Australian legislation. The difficulty was that the legislation referred to in the policy had been repealed four years earlier, and therefore had not contemplated Covid-19, and had subsequently been replaced by another Act which for the first time referred to Covid-19.

The latest case to grapple with the coverage of business interruption insurance in response to the Covid-19 pandemic is that of the Irish High Court in Hyper Trust Ltd v FBD Insurance plc [2021] IEHC 78; [2021] Lloyd’s Rep IR Plus 6. This was the hearing of four test cases, representing some 1,300 others, based on FBD’s standard business interruption policy wording for public houses. The evidence showed that FBD had a long-standing relationship with the Vintners Federation of Ireland, a trade association representing Irish publicans, from which it may be assumed that the wording of the policies had been thought suitable for the industry – at least until the outbreak of the pandemic.