A tale of two duties: Utmost good faith and reasonable care

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It has been a remarkable 250 years since Lord Mansfield 'started all the trouble' by finding that the principle of good faith applied to all (insurance) contracts and dealings. However, notwithstanding the passage of time and a discernible increase in the pace and detail of its consideration by Australian courts in recent years, the precise demands of the duty of utmost good faith, particularly as it applies post-contractually, remain difficult to predict and one of the 'great unknowns' of insurance law. In this paper I suggest that there are good reasons for, and already signs of, adopting an approach to 'populating' the duty of utmost good faith by reference to organising concepts developed in the law of negligence, reflecting and responding to the relationship between the parties and the context in which it arises.
Original languageEnglish
Pages (from-to)261-274
Number of pages14
JournalInsurance Law Journal
Issue number2-3
Publication statusPublished - 2016


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