Insurance Contracts CP - Law Reform Commission

9.20 Because Ireland has not adopted the 1930 Act, the Commission cannot give a considered view
on whether legislation of this kind is in need of revision. Any such recommendations should in any case
be seen in the context of Irish insolvency law rather than Irish insurance contract law and the Law
Commission in its 2001 Report stressed that privity of contract and the 1930 Legislation raised different
issues. For example, the Law Commission took the view that even the implementation of the Contracts
(Rights of Third Parties) Act 1999 would not support an argument that the 1999 legislation rendered the
1930 Act redundant because:
insurers would not write insurance contracts so as to enable third parties to rely on the 1999 Act,
rights to information about the insurance position of persons against whom claims are
considered are not addressed in the 1999 Act.
9.21 On the other hand, there are some features of the 2010 legislation that do provide some
improvements to insurance contract law rules on notification. Conditions that oblige an insured to provide
information are rendered ineffective if the insured has ceased to exist through death or corporate
dissolution, for example, 30 and notification conditions are now capable of being complied with by the
claimant as well as the insured. 31
9.22 The Commission proposes that section 62 of the Civil Liability Act 1961 should be augmented
by borrowing from section 51 of the Australian Insurance Contracts Act 1984. That section, in a much
less detailed form, replicates the provisions in section 62 of the Civil Liability Act 1961. However, the
reference in section 51 to an insured who cannot, after reasonable enquiry, be found, appears to the
Commission to be a useful addition to those sections and the Commission recommends that those
sections in the two 1961 Acts be amended to include those untraceable insureds.
9.23 The Commission provisionally recommends that section 62 of the Civil Liability Act 1961
should be extended to allow a third party to proceed against the insurer where the insured cannot be
located.
E Insurable Interest and Privity 32
9.24 The decision in Vandepitte v Preferred Accident Insurance Corporation of New York 33 also
addressed the insurable interest question, the Privy Council holding that the insured, father of the driver
of the vehicle which caused the appellants injury, had no insurable interest at law. The Privy Council held
that the property exceptions such as those developed in Waters v Monarch Life and Fire Insurance Co 34
had no application. The Commission‘s provisional recommendations, in Chapter 2 of this Consultation
Paper, particularly the recommendation that the fact that an insurance claim should not of itself fail
because of the absence of an insurable interest (as traditionally defined) would remove this aspect of the
Privy Council‘s judgment from forming a part of Irish law. Additionally, the fact that Irish law does not
expose non life policies where an insurable interest does not exist to the full rigour of the Gaming and
Lotteries Act 1956 is also to be welcomed in the context of a modern and effective system of regulating
gambling. It should be noted that while English case-law at one stage 35 inclined towards the view that
absence of an insurable interest will lead to the conclusion that the contract is a gaming contract, the
better view is that ―if either party was not wagering, the contract is not a wagering contract.‖ 36
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Corporate dissolution was proposed in the Law Commission Report at para 5.19. Section 9(3) of the 2010 Act
also includes individuals who have died.
Third Parties (Rights against Insurers) Act 2010, section 9(2).
See generally Ch 6 of Lowry and Rawlings, Insurance Law, Doctrines and Principles 2nd ed (Hart 2010).
[1933] AC 70; see also Jovanovic v Broers (1979) 25 ACTR 39, discussed at para 122 of ALRC Report No. 20
(1982).
(1856) 5 E & B 870; A Tomlinson (Hauliers) Ltd v Hepburn [1966] AC 451.
Newbury International v Reliance National Insurance Co (UK) [1994] 1 Lloyd‟s Rep 83.
Hobhouse J in Morgan Grenfell & Co v Welwyn Hatfield District Council [1995] 1 All ER 1 at 10.
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