High court considers scope of duty to notify claims

The case Maccaferri Limited v Zurich Insurance Plc [2015] EWHC 1708 (Comm) concerned a claim brought against the insurers (Zurich) for refusing to indemnify the insured Maccaferri (Maccaferri). The relevant policy included an obligation to “give notice in writing to the insurer as soon as possible after the occurrence of any event likely to give rise to a claim.” The principal issue before the court concerned the extent of the duties placed on the insured by this clause and whether Maccaferri had complied with those duties.

A claim arising from an industrial injury was made against Maccaferri. An employee of Maccaferri had learnt of the accident and had also learnt that claims were being brought against others, but not Maccaferri. He subsequently asked for information regarding the accident from a company against which a claim had been made; but received no response. On discovering the claim that was to be brought against them, Maccaferri notified their broker within three days. Their insurance claim was refused on the grounds of failing to give notice as soon as possible after the event likely to give rise to a claim.

Clause 2 in the insurance contract stated “The insured shall give notice in writing to the insurer as soon as possible after the occurrence of any event likely to give rise to a claim with full particulars thereof.” Zurich argued that the use of the words “as soon as possible”, taken in conjunction with the requirement to provide full particulars, implied a duty of inquiry and an obligation to be proactive meaning that the obligation to notify arose when the insured could, with reasonable diligence, discover the event that was likely to give rise to a claim.

The court held that there was no requirement for a continuing assessment of the likelihood of a claim arising unless it was expressly provided for in the policy. The submissions by the defendant that the words “as soon as possible” imply a duty of inquiry were also rejected because the words were determined to simply refer to the promptness with which the notice in writing is to be given.

The court also held that the phrase “likely to give rise to a claim” should mean that there was a 50 percent chance or greater of a claim arising. When the original accident occurred there was not at least a 50 percent chance of a claim eventuating, particularly as Maccaferri was not blamed for the accident at the time. Therefore, even though they knew about the accident, there was no duty on Maccaferri to inform Zurich. Simply because an accident happens does not mean that a claim is going to be brought.

Zurich was therefore obliged to indemnify under the policy and the declaration was granted in favour of Maccaferri.

Leave a comment

Filed under Uncategorized

Comments are closed.