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ICA second test case set to conclude this week

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The Insurance Council of Australia (ICA) second business interruption test case is set to conclude this week after hearing arguments relating to disease and prevention of access wordings and how any losses should be calculated if a policy is triggered.

Issues raised during the hearing have included a discussion of “trends” issues and the relevance of the UK Financial Conduct Authority (FCA) test case result, where the Supreme Court rejected a landmark Orient Express Hotels decision.

Senior Counsel Bret Walker, appearing for Chubb, told the Federal Court that the original decision on the Orient Express case should be preferred to the FCA result, while noting the UK case did not amount to a precedent.

“There has been in our submission an over-egging of the significance of that recent Supreme Court decision,” he said.

The landmark Orient Express Hotels decision, which was rejected by the UK Supreme Court, found a hotel damaged by a hurricane wouldn’t have experienced major losses under a business interruption claim as its business would have been impacted anyway from the surrounding devastation.

The second test case consists of nine small business claims from a range of business sectors and locations lodged with Australian Financial Complaints Authority as part of its dispute resolution process.

Another test case involving QBE and a travel company has also been heard at the same time, looking at whether Section 61A of the Victorian Property Law Act has the effect of substituting in the Biosecurity Act for the repealed Quarantine Act.

The section of the law says that where an Act is “repealed and re-enacted” references in contracts will be taken as referring to the new Act.

The hearing, before Justice Jayne Jagot, has been scheduled for eight days ending Wednesday, with time already set aside for a potential appeal hearing in November.