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CHAPTER 18 Evidence: Proving a breach of duty or a defence

Good Faith and Insurance Contracts

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Evidence: Proving a breach of duty or a defence

The onus of proof

18.01 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 misrepresentation2 or a fraudulent claim,3 lies on the insurer. This

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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 true4 or that he has withheld no material fact.5

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