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Interpreting insurance policies and the quality of the drafting (Australian judgment)


The quality of the drafting of a policy may be taken into account when construing its terms:

“The policy should be construed as a whole … It should not be approached by isolating particular fragments or disregarding its overall character … This also requires consideration of the style, layout, language and structure of the instrument.    Some commercial instruments present as having been drafted with the coherence and consistency in terminology and grammatical expression that may be expected of an experienced and expert commercial lawyer.  In such cases it is appropriate for the language to be construed by reference to the customary forms adopted in such instruments.  Others present as a ‘clumsily tailored variation of an ill-fitting off-the-shelf precedent: Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd [2017] HCA 12 at paragraph 51.  In such instances, no reasonable business person would interpret the instrument with the same eye to differences in language and terminology as might be appropriate for instruments that have a different form of structure and expression.  Some commercial instruments, are relatively informal or are brought into existence to meet the exigencies and necessities of everyday commercial life without time or inclination to ensure neatness of grammar and consistency in terminology.  Others present as being carefully considered and settled by those with considerable experience in their drafting.  All such characteristics of the instrument as a whole should be brought into account when giving a businesslike construction to the instrument.

See Star Entertainment Group Limited v Chubb Insurance Australia Ltd [2022] FCAFC 16


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