Claims Made Insurance Policies in New Zealand and Australia: Should New Zealand Enact a Statutory Deeming Regime?

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.