Insurance contracts & failure to disclose

Michail v Australian Alliance Insurance Company Ltd [2014] QCA 138

JUDGES:                      Margaret McMurdo P and Gotterson JA and Dalton J Separate reasons for judgment of each member of the Court, each concurring as to the orders made.

ORDERS:                      Dismiss the appeal and order that the appellant pay the respondent’s costs.


  INSURANCE – MOTOR VEHICLES – INSURANCE OF MOTOR VEHICLES FOR LOSS OR DAMAGE – DISCLOSURE AND MISREPRESENTATION – where the appellant claimed against his insurer, the respondent, for the total loss of his car – where it was common ground that the appellant had not disclosed his driving history to the respondent – where the respondent insurer contended that had the true position been disclosed to it, it would not have insured the risk at all – where the appellant contended that the judge below erred in finding that the insurer would not have insured the appellant – where the respondent had written guidelines as to whether or not it would accept various risks apparent in proposals it received – where the respondent at trial called the person who would likely have considered the appellant’s proposal had full disclosure been made – where that person’s evidence was that neither he nor those at a lower level in the respondent’s hierarchy had discretion to accept the appellant’s proposal – whether the judge below erred EVIDENCE – BURDEN OF PROOF, PRESUMPTIONS, AND WEIGHT AND SUFFICIENCY OF EVIDENCE – GENERALLY – CREDIBILITY AND WEIGHT – PARTY’S FAILURE TO GIVE OR CALL EVIDENCE – where the appellant contends the judge below should have exercised caution in assessing the evidence adduced by the respondent in accordance with the principles in Blatch v Archer – where the appellant contended the respondent ought to have called the executive manager of the respondent – where the appellant contended the respondent ought to have provided a proper underwriting assessment of the risk which the appellant’s proposal posed – whether the rule in Blatch v Archer applied


David Cormack – Brisbane Barrister.

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