4.1 “Other insurance” clauses – Australian legislation barring double insurance exclusion clauses

The English authorities were discussed in the Commission’s Report1 and considered “difficult to follow and impossible to reconcile”. There were numerous issues and areas of concern which were identified. Legislation was considered a way to give sufficient protection. There is specific legislation in Australia prohibiting the inclusion of clauses limiting or excluding liability where there is double insurance. The effect of the legislation is to make such clauses void, unless the insurance contracts fall within the exceptions under s45(1) or (2) of the Insurance Contracts Act 1984.2 The double insurance provision in the policy becomes void not the entire insurance contract. Should the United Kingdom enact similar legislation? If not, can the common law position be developed in a similar fashion to that of s4?