consumer-> individual who proposes to, or who does, enter into a consumer insurance contract
insurance contract -> wholly or mainly for the purposes unrelated to the individuals trade, business or profession
consumers duty -> has a duty to take reasonable care not to make a misrepresentation -> failure to reply to an insurers request to confirm or amend info previously given can be a misrepresentation
consumer insurance act (2) - reasonable care
-> whether or not consumer has taken reasonable care will be determined in light of all relevant circumstances
type of consumer contract in question
relevant explanatory material produced or authorised by the insurer
whether questions asked were clear & specific
whether insurer communicatedimportance of answering such questions
-> standard of care is that of a reasonable consumer -> consumer considered to have knowledge of a reasonable consumer & to know a matter the insurer asks clear & specific questions about = relevant to insurer
gain remedies if can show: (1)
deliberate or reckless -> can treat contract as if it never existed // refuse all claims // refuse any premiums paid unless unfair to consumer
deemed to be deliberate or reckless -> if consumer knew or didnotcare whether it was true or misleading // AND knew or did not care the matter the misrepresentation was of relevance to the insurer
gain remedies if can show: (2)
consumer made a careless misrepresentation that is one they genuinely believed to be true, but didn't take sufficient care to check the facts -> insurer would not have entered contract = refuse all claims and return premiums
-> insurer would've entered contract on different terms and these are implied into the contract
-> insurer would have entered into the contract but charged a higher premium // reduced proportionately the amount paid on a claim