Australia: When is Extrinsic Evidence Admissible for the Purposes of Construing a Policy?

Last Updated: 25 August 2010
Article by Selva Veeriah

QBE Insurance Australia Limited v Vasic [2010] NSWCA 166


The New South Wales Court of Appeal ('NSWCA') has considered under what circumstances relevant extrinsic evidence would be received as an aid to construe the scope of a policy.

In this case, the insurers sought to rely on certain relevant extrinsic evidence in construing the scope of indemnity under the policy in question. First, the insurers produced a proposal form and policy wording of an insurance policy taken out by the insured with another insurer. Second, the insurers produced a statement of a broker as to its aim and genesis of the policy.

The NSWCA has ruled that extrinsic evidence of these matters could not be received as an aid to construction because they were not used or relied upon by the contracting parties in negotiating the contract in issue.


The claimant (then a minor), accompanied his father on an overnight hunting excursion on a property in outback New South Wales ('the property'). His father came to the property for the purpose of hunting. The insured owned and managed the property. The claimant was injured in a fire at the accommodation provided by the insureds. The claimant brought proceedings against the insureds seeking damages for personal injuries. The insurers denied liability. They were joined to the proceedings. The insurers applied to determine whether, upon a true construction of the relevant policy ('QBE policy'), they were liable to indemnify the insureds.

The insuring clause in the policy provided that the insureds were covered for liability to third parties for bodily injury, or property damage, or both, caused by an occurrence in connection with the insureds' activity of allowing licensed shooters on their property for hunting only.


The insureds contended that the policy covered liability incurred in connection with accommodation; it being incidental to the defined activity of hunting.

The insurers argued that the policy did not cover accommodation or any activity outside hunting. The insurers produced the earlier insurance policy with another insurer ('the earlier policy') to show that the aim and genesis of the subject policy was to cover a gap in the earlier policy that excluded liability for loss or damage arising from the use of firearms. Further, the insurers adduced a statement by an insurance broker (who was an agent of the Sporting Shooters Association, not either of the parties) to show that the policy wording adopted in the subject policy was developed as a gap cover insurance for the purpose of covering rural landowners for their liability for negligence to licensed shooters while hunting on their properties.

Primary Judge's decision

The primary judge ruled that, once licensed shooters attended the property for the subjective purpose of hunting then any loss and damage incidental to that purpose was covered. He agreed with the insureds' construction of the policy and gave weight to, among other things, the following surrounding circumstances: the remoteness of the property; the lack of nearby accommodation; and the need for licensed shooters to stay on the property during the hunt.

The primary judge rejected the insurers' reliance on extrinsic material or surrounding circumstance evidence. He considered the earlier policy could not be received as an aid to construction because there was no evidence to show that the insurers (or their agent) were aware of the existence of the subject policy. Similarly, the statement could not be received because there was no evidence that the parties had knowledge of how the subject policy was developed.

The primary judge concluded that the insurers were liable to indemnify the insureds. The insurers appealed, contending that the primary judge misunderstood the policy wording and failed to have regard to the relevant extrinsic evidence in arriving at his conclusions.

Decision of the Court of Appeal

The NSWCA has ruled that surrounding circumstances included what was known between the parties with respect to materials covering the object and purpose of the transaction, including its genesis, background, context, and the market (if any) in which the parties were operating. However, there must be mutuality of knowledge before those surrounding circumstances can be used as an aid in the construction and interpretation of a policy.

The notion of what is known to the parties involves attributing to a reasonable person what the parties knew in the context of their mutual dealings in order that the court might ascribe an objectively correct meaning to the text. Facts existing during the making of an insurance contract would not be received as part of the surrounding circumstances unless both parties knew them or those facts are notorious, that knowledge of them will be accepted.

The primary judge was found to have correctly rejected the insurers' extrinsic evidence. The insurers (and their agent) were neither aware of, nor relied upon, the earlier policy in preparing the subject policy. The broker's statement, although unchallenged, was no more than a statement of the subjective aims and intentions of a person who was not representing either contracting party.

The coverage clause covered the insureds for liability for different types of injury and damage caused by an occurrence which must have a connection with a certain activity. The event that occurred was in connection with that activity because, as was known to the insureds, the claimant's father was a licensed shooter who came on the property for the purpose of hunting.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.