Evidence: Proving a breach of duty or a defence
The onus of proof
The assured must satisfy the court or tribunal that is hearing his claim that he has suffered a loss that falls within the cover afforded by the terms of the policy of insurance. The assured need not prove that he has complied with the duty of the utmost good faith, whether it concern the pre-contractual duty of fair presentation of the risk or the presentation of a claim. The burden of proving the breach of such a duty, whether it be a non-disclosure, 1 a misrepresentation 2 or a fraudulent claim, 3 lies on the insurer. This
onus will not shift to the assured merely because he has declared or warranted that his representations or any specific representation or his answers to the questions put to him by the insurer are true 4 or that he has withheld no material fact. 5
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