Abstract/Summary

Insurance policies, unlike most other contracts, impose a pre-contractual duty of disclosure upon the applicant for insurance. There are numerous questions surrounding this duty: what has to be disclosed; how is disclosure to be effected; what is the role of intermediaries; what role do insurers play in alerting applicants to their duty? The present article is concerned with a discrete element of the duty, namely, when is an applicant in possession of information for disclosure purposes. Plainly a person cannot disclose what they do not know. But does that apply if they should know it, or if the knowledge is in possession of a partner, employee or agent? There are two different regimes in England, and two (arguably three) further different regimes in Australia. As this article demonstrates, although the issue is common to them all, there is very little in the way of agreed principle.