Fire insurance: burden of proof

It is trite law that, in order to substantiate a claim under an insurance policy, the assured bears the burden of proving that there has been a loss and that the loss was proximately caused by an insured peril. It is no part of the assured's obligation to show that the loss was fortuitous. Thereafter, the insurers will have to pay unless they can satisfy the burden of proving a defence under the policy.

It is possible for the burden of proof to be reversed by express wording, and there is a statutory exception in the case of perils of the seas where the burden of showing a fortuity is borne by the assured. The question before the Supreme Court of New South Wales in McLennan v Insurance Australia Ltd [2014] NSWCA 300 was whether the burden had been reversed by the wording of the policy, requiring the assured to prove a fortuitous loss.