Abstract:
A claims made policy protects an insured person or business in relation to claims made
against that person or business during the policy period, regardless of when the cause of
loss occurred, and regardless of when the claim is notified to the insurer (subject always
to the terms of cover and the relevant law). The trigger event for a claim against the
insurer is the receipt of the claim or demand by the insured. However, issues can arise
when the insured has knowledge of circumstances that may lead to a claim, but the claim
itself is delayed, a situation sometimes addressed by way of a contractual 'notice of
circumstances' provision coupled with a deeming provision. The proposition in this
dissertation is that New Zealand should have a statutory deeming regime affecting claims
made insurance policies, similar to that contained within section 40 of Australia’s
Insurance Contracts Act 1984 (Cth). However, to properly consider that proposition, it is
necessary to review the context within which section 40 arose, its practical effect in that
context, and the perceived issues that might be addressed in New Zealand by way of a
statutory deeming regime. In particular, it is necessary to acknowledge the juxtaposition
of sections 40 and 54 of the Insurance Contracts Act (Cth), and the implications of
section 9 of New Zealand's Insurance Law Reform Act 1977.
