The clause is an amalgamation of various clauses but it clearly passes the burden of proof to the assured and provides the assured with the task of satisfying a court (where a war or allied risk is taking place) that the loss did not occur as a result of the hostilities.

The insurer is still required to provide some proof that a loss has taken place in a location and in circumstances where the abnormal conditions are occurring; such as war or civil war. Often this will be a matter of common sense or on the public record. For example, if during the civil war in Liberia a supermarket was looted and subsequently burned down, if such a clause existed in the policy, it would be necessary for the insurer to satisfy the court that perhaps during the week that the loss took place members of the opposing forces had been fighting in the locale of the supermarket. It would then be for the assured to prove that there was no connection between the damage and civil war.

The important case of Spinneys (1948)v. Royal Insurance Co. [1980] 1 Lloyd’s Rep 406 is discussed later but Mustill J neatly summarised the effect of a reverse burden of proof clause as follows:

“… the insurers cannot bring the clause into play simply by asserting that the loss was excluded by a particular exception, and challenging the insured to prove to the contrary. They must produce evidence from which it can reasonably be argued that:

– a state of affairs existed or an event occurred falling within an exception, and

– the excepted peril directly or indirectly caused the loss.

It is only when an arguable case of this nature is made out that the insured is required to disprove it.”

Therefore, no war and allied risk exclusion clause can be guaranteed to be effective in all circumstances.