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Business Interruption Issues. Rob Merkin Universities of Exeter and Auckland Norton Rose Fulbright. Triggers of coverage. State intervention Cat Media Pty v Allianz Australia Insurance 2006 ) 14 ANZ Ins Cas 61-700

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business interruption issues

Business Interruption Issues

Rob Merkin

Universities of Exeter and Auckland

Norton Rose Fulbright

triggers of coverage
Triggers of coverage
  • State intervention
    • Cat Media Pty v Allianz Australia Insurance 2006) 14 ANZ Ins Cas61-700
    • Allstate Explorations NL v QBE Insurance (2008) 15 ANZ Ins Cas61-773)
  • Disease and contamination
  • Material damage to property belonging to or used by the assured
    • Whaitiri Potato Co Ltd v IAG (NZ) (2006) 14 ANZ Insurance Cases 61-675
    • State Insurance v Ruapehu(1999) 10 ANZ Insurance Cases 61-435
    • Mainstream Aquaculture Pty Ltd v Calliden Insurance Ltd [2011] VSC 286
    • New World HarbourviewHotel v Ace Insurance Ltd [2012] HKCFA 21
    • PMB Australia v MMI General Insurance (2002) 12 ANZ Ins Cases 61-537
measure of indemnity
Measure of indemnity
  • Loss of gross revenue, adjusted by “trends clause”

… adjustments shall be made as may be necessary to provide for the trend of the Business and for variations in or special circumstances affecting the Business either before or after the Damage or which would have affected the Business had the Damage not occurred so that the figures thus adjusted shall represent as nearly as may be reasonably practicable the results which but for the Damage would have been obtained during the relative period after the Damage

loss arising from trigger and external events
Loss arising from trigger and external events
  • Orient-Express Hotels Ltd v Assuricazioni General SpA[2010] EWHC 1186 (Comm)
    • Concurrent cause principle not applicable – the test is “but for”
    • The word “damage” in the trends clause means damage to premises and not damage to locality
    • Accordingly, test is based on undamaged building in damaged town
  • Unanswered questions
    • Is “but for” still a credible test? Note that the decision to apply the “but for” test was an unappealable question of fact.
    • Possibility of monopoly profits from the test applied.
    • Effect of damaged building in damaged town, damaged building in undamaged town and undamaged building in undamaged town?