Clearly, if the undertaking to insure against all risks is qualified in the insuring clause, then this may well affect the burden of proof. It is often difficult to decide, however, whether there is truly a qualified undertaking to insure against all risks or whether in fact there is an undertaking to insure against all risks but with an exclusion included in the insuring clause. In the former case, the burden of proof would remain with the assured and, in the latter case, the burden of proof would shift to the insurer. The case of Hurst v. Evans, is yet another example of a court being reluctant to shift the burden of proof where there are suspicious circumstances. The insuring clause covered the assured, a jeweller, against loss of or damage to jewellery arising from any cause whatsoever save and except loss by theft or dishonesty or any servant in the exclusive employment of the assured. An analysis of that clause would suggest that it is indeed an unqualified undertaking to insure against all loss or damage but incorporating an exclusion in the insuring clause. This was not recognised by the court in an understandable desire to avoid the insurers being required to pay for a suspected self-induced loss.

Assuming for the moment that the words “all risks” are used in the insuring clause, it is suggested that if the words of qualification are inserted between “all” and “risks”, then the court is more likely to construe the words as a qualification rather than an exclusion. The only way, however, that the insurer can guarantee that the burden of proof remains with the assured, is to include a clause stipulating that the assured must bear the burden of proof. The reverse burden of proof clause is frequently used in war exclusions and indeed can be used in any circumstances where it would be difficult if not nigh impossible for the insurer to prove, on the balance of probabilities, that a particular exclusion should apply.