# International case law: business interruption and pandemic

URL: https://insurancelawestonia.ee/international-insurance-case-law/business-interruption-and-pandemic/
Author: Dr Olavi-Jüri Luik, Partner, Head of Insurance Law, attorney at law (Advokaadibüroo WIDEN OÜ)
Last updated: 2026-11-09

> 6 decisions of foreign courts on business interruption and pandemic: summaries, paragraphs and links.

This page is part of the [overview of international insurance case law](https://insurancelawestonia.ee/international-insurance-case-law). It collects 6 decisions of foreign courts on this topic, in chronological order, with a short synthesis. Foreign decisions are not binding in Estonia. Citation conventions and links are explained on the [overview page](https://insurancelawestonia.ee/international-insurance-case-law#how-to-use-this-overview).

## Synthesis

The COVID-19 pandemic exposed problems in interpreting business interruption extensions (notifiable disease, denial of access). Courts in the United Kingdom and South Africa treated each case of disease, or the government measures responding to it, as an equally effective cause and did not allow trends clauses to strip out consequences of the same cause (FCA v Arch, Guardrisk). German and Australian courts focused on wording: an exhaustive list of diseases or an outdated statutory reference decided the outcome (BGH IV ZR 144/21, HDI v Wonkana). The French Court of Cassation tested exclusions for formality and limitation (Code des assurances Article L113-1). Under Estonian law, terms are interpreted under VÕS §§ 29 and 39, and there is no Supreme Court judgment on business interruption.

## Decisions

### HDI Global Specialty SE v Wonkana No 3 Pty Ltd [2020] NSWCA 296

*New South Wales Court of Appeal, 18.11.2020* · Australia · paras 13-16, 19-21, 32-39 · business interruption; COVID-19; outdated statutory reference; exclusion

Business interruption policies excluded diseases declared quarantinable under the Quarantine Act 1908 and 'subsequent amendments', although that Act had been repealed and replaced by the Biosecurity Act 2015 before the policies were issued (paras 13-16). Construing the term objectively from the insured's perspective (paras 19-21), the Court of Appeal held that 'subsequent amendments' meant changes to that Act, not replacement legislation (paras 37-39); the exclusion did not apply. Relevance: interpretation of outdated statutory references in standard terms.

[Text of the decision: caselaw.nsw.gov.au](https://www.caselaw.nsw.gov.au/decision/175d83c4c19face7f3e6bc2c)

### Guardrisk Insurance Company Ltd v Café Chameleon CC [2020] ZASCA 173

*Supreme Court of Appeal of South Africa, 17.12.2020* · South Africa · paras 20-21, 27, 34, 44-45, 48, 51, 60-62, 68 · business interruption; COVID-19; notifiable disease; but-for test; trends clause

A restaurant had to curtail its business because of the national lockdown and claimed under a notifiable disease extension covering disease within a 50 km radius. The Supreme Court of Appeal held that the insured peril included the government's response to the disease, whether national or local (paras 20-21, 27, 34), that the but-for test was met with the correct counterfactual (paras 44-45) and that the trends clause goes to quantum, not liability (paras 60-62). The appeal was largely dismissed (para 68). Relevance: causation between disease and government restrictions in BI cover.

[Text of the decision: saflii.org](https://www.saflii.org/za/cases/ZASCA/2020/173.html)

### Financial Conduct Authority v Arch Insurance (UK) Ltd and others [2021] UKSC 1

*UK Supreme Court, 15.01.2021* · United Kingdom (English law) · paras 176-177, 197-212, 268, 287, 294-296, 308-310 · business interruption; COVID-19; disease extension; causation; trends clause

In a test case brought by the Financial Conduct Authority, the Supreme Court construed disease and denial of access clauses in business interruption policies. It held that each case of COVID-19 was an equally effective cause of the government measures and that the insured peril was a proximate cause where the interruption resulted from measures responding to cases including at least one within the insured radius (paras 176, 212); a 'but for' test was not required (paras 177, 197-205). Trends clauses may not strip out the consequences of the same underlying cause (paras 268, 287, 294-296), and Orient-Express was overruled (paras 308-310). Relevance: drafting of BI extensions and causation.

[Text of the decision: supremecourt.uk](https://supremecourt.uk/uploads/uksc_2020_0177_judgment_7c100b4df5.pdf)

### Santam Ltd v Ma-Afrika Hotels (Pty) Ltd [2021] ZASCA 141

*Supreme Court of Appeal of South Africa, 07.10.2021* · South Africa · paras 1-3, 13, 17 · business interruption; COVID-19; indemnity period; interpretation

Hotels claimed business interruption losses caused by the pandemic, and the dispute concerned the length of the indemnity period under the infectious disease extension. Reading the policy as a whole, the Supreme Court of Appeal held that the agreed indemnity period was 18 months, not three months, and upheld the declarations below; the appeal was dismissed. Relevance: interaction of extension and main cover terms and the indemnity period in BI insurance.

[Text of the decision: saflii.org](https://www.saflii.org/za/cases/ZASCA/2021/141.html)

### BGH 26.01.2022, IV ZR 144/21

*Federal Court of Justice (BGH), IV Civil Senate, 26.01.2022* · Germany · headnote 1-2; Rn 10, 15-22, 40 · business closure insurance; COVID-19; exhaustive list of diseases; transparency

The policyholder's business was closed in 2020 to contain the coronavirus, and it claimed under business closure insurance whose terms listed the insured diseases and pathogens. The BGH held that the clause contained a self-standing exhaustive list of diseases and pathogens that did not include COVID-19; the mention of §§ 6 and 7 of the Infection Protection Act merely explained where the list came from and was neither a static nor a dynamic reference to those provisions (Rn 15-19); and the term was transparent and not unreasonably disadvantageous (§ 307 BGB). The appeal on points of law was dismissed. Relevance: exhaustive lists and statutory references in standard terms (VÕS §§ 39, 42).

[Decision details and text: dejure.org](https://dejure.org/dienste/vernetzung/rechtsprechung?Gericht=BGH&Datum=26.01.2022&Aktenzeichen=IV%20ZR%20144/21)

### Cass. 2e civ., 01.12.2022, nº 21-19.341

*French Court of Cassation, Second Civil Chamber, 01.12.2022* · France · paras 10-15, 17-22 · business interruption; COVID-19; formal and limited exclusion; Code des assurances Art L113-1

The insured business was closed during the pandemic, and the policy excluded business interruption losses where, at the time of closure, another establishment in the same département was closed for the same reason. The court of appeal held the exclusion ineffective. The Court of Cassation held that the circumstance removing cover was not the epidemic but the closure of another establishment for the same cause, so the exclusion was formal (paras 10-15) and limited, as the cover retained its substance (paras 17-22); the judgment was partly quashed. Relevance: assessing clarity of exclusions and terms that hollow out cover under VÕS § 42.

[Text of the decision: legifrance.gouv.fr](https://www.legifrance.gouv.fr/juri/id/JURITEXT000046683151)