AXIS Specialty Europe SE · DRN-6157645

The complaint A company, that I’ll refer to as D, has complained that AXIS Specialty Europe SE declined its business interruption insurance claim. Mr C, a director of D, has brought the complaint on D’s behalf. What happened D operates as a pub. In March 2020, it made a claim under its policy after it closed between March and July 2020, as a result of the restrictions imposed by the Government in response to the Covid-19 pandemic. AXIS refused the claim, as it said although the policy covers closure of a business due to infectious diseases, the closure has to be as a direct result of an occurrence of the disease at the premises, and not as a result of general closure required by the Government. AXIS didn’t consider this was the case. AXIS also considered whether there might be cover under the ‘denial of access’ extension of cover but said it would not provide cover either, as this required there to be property damage. In late 2024, Mr C provided evidence that he said established that there had been an occurrence of Covid-19 at the premises at the relevant time and the claim should therefore be covered. Mr C said that as well as him being unwell before the lockdown was announced by the Government, a staff member (who I will call Miss A) had Covid-19 symptoms. He has provided extracts from Miss A’s medical records, which show she presented several times from March 2020 onwards with symptoms that he says were Covid-19 related and that she has had chronic tinnitus, which is a known symptom, of long Covid. We sent this additional evidence to AXIS but it did not accept that it establishes Miss A was more likely than not infected with Covid-19 at the relevant time, rather than some other illness. It says this because • the symptoms are recorded as having started before the first confirmed case of Covid-19 in the area (which was 9 March 2020). • All the symptoms she had are also symptoms found with other common respiratory tract infections and were likely the result of a cold or flu. • Common symptoms of the Covid-19 infection at the time are not mentioned in the medical notes, such as continuous dry cough, loss of sense of smell or taste. • There is no suggestion in the notes of the illness being Covid-19 (by Miss A or the treating doctors) until a note from 2025. • An ambulance attendance note says “coronavirus concern not identified at onset of call”. • Antibiotics were prescribed that would be suitable for chest infections but not Covid-19. And tinnitus is not a common symptom of Covid-19. Mr C was unhappy with this, so one of our Investigators looked into the matter. He did not recommend the complaint be upheld, as he was satisfied AXIS was entitled to refuse the

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claim. The Investigator did not think the evidence provided was enough to establish that there had been an occurrence of Covid-19 at the premises. Mr C does not accept the Investigator’s assessment. He has made a number of points in response. I have considered everything he has said and have summarised his main points below: • The Investigator has put disproportionate emphasis on the absence of testing and on individual symptoms in isolation, rather than on the cumulative evidential picture and the realities of early March 2020. • AXIS concluded Miss A had a cold or flu four years before having her medical records (which were not obtained until early 2025) and simply maintained its position without properly considering her records. • Miss A has confirmed she had Covid-19 in March 2020, not a cold or flu. She experienced many symptoms of Covid-19. The antibiotics prescribed to her are not prescribed for a cold or flu and were used as a common response to Covid-19 at the time. • Community transmissions were known to be much higher than was recorded, so although the first reported case of Covid-19 was after the onset of Miss A’s symptoms, this does not mean she did not have Covid-19. • The Investigator has raised further possibilities for her symptoms that have not been raised by AXIS previously • When the contemporaneous medical records, the timing and progression of symptoms, the absence of any confirmed alternative diagnosis, the subsequent complications, the wider factual context of early March 2020, and the consistent testimony are considered cumulatively — rather than symptom by symptom in isolation — the evidence comfortably exceeds the 51% threshold. This is not a marginal case, and applying a higher evidential bar risks imposing a standard that could not realistically have been met in March 2020. As the Investigator was unable to resolve the complaint, it has been passed to me. D also made a claim for later lockdown periods but this complaint is only about the claim made for the period of the first lockdown from March 2020. AXIS obtained a report from a scientist to support its position. Mr C asked for sight of that report but AXIS says it is legally privileged. I confirm I have seen the report but have not read it in full and have not relied on it, as I do not think I need to in order to fairly consider the fair and reasonable outcome of this complaint. I also note that Mr C has made a subject access request to AXIS and is unhappy with the response he has received. This would be a matter for the Information Commissioner’s Office and is not something I can comment on in this decision. What I’ve decided – and why I’ve considered all the available evidence and arguments to decide what’s fair and reasonable in the circumstances of this complaint. I’m sorry to hear that the pandemic and the Government’s related actions have had an impact on Mr C’s business.

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Business interruption insurance policies provide protection for some of the common things which might happen to a business. No policy will cover every eventuality however and each policy may provide different cover. I have considered D’s policy carefully. It includes cover for losses arising from the interruption of business as a result of certain specified events most of which require damage to the premises, which is not the case here. There is an extension to the core cover which both parties agreed was relevant to D’s claim for closure due to infectious disease. The policy says cover is provided for: “Premises Closure or Restrictions a) closure or restrictions placed on the Premises on the advice of or with the approval of the Medical Officer of Health for the Public Authority as a result of a Notifiable Human Disease occurring at the Premises”. The policy defines a “Notifiable Human Disease” as: “An illness sustained by any person caused by a) food or drink poisoning b) any human infectious or contagious disease c) an outbreak of which the competent local authority has stipulated shall be notified to them”. It has not been disputed that Covid-19 is a Notifiable Disease. So, for this extension to provide cover for D’s claim, the interruption to D’s business would need to have been as a result of an occurrence of Covid-19 at the premises. I consider this would need to be an occurrence prior to the Government’s decision that pubs should close, which was made on 20 March 2020, for any occurrence at the premises to have counted towards that decision. It is for D, as the claimant, to demonstrate that it has a valid claim. So, in this case, D needs to show it was more likely than not that there was an occurrence of Covid-19 prior to this decision by the Government. Was there an occurrence at the premises? Widespread self-testing wasn’t available towards the start of the pandemic, and the Government advised people to avoid using health services if they were displaying symptoms of Covid-19, save for emergencies. It’s therefore rare that a claimant will be able to produce a positive test result from that period. And I agree with Mr C that to treat that as a requirement to demonstrate a case on the premises would be unfair. It’s therefore necessary to take a more pragmatic approach, and to consider whether other evidence can be provided that supports, on the balance of probabilities, that there was an occurrence of Covid-19 at the insured premises prior to closure. As with any insurance claim, the burden of proof initially rests with the policyholder to demonstrate that it’s suffered a loss its policy covers. We consider that an occurrence of Covid-19 is reasonably considered to have happened when an individual becomes diagnosable with the disease. An actual diagnosis is not necessary; the individual merely needs to be capable of having this diagnosis. Mr C has said he was unwell with symptoms of Covid-19 between 17 and 20 March 2020 and had to finish work early on 19 March 2020 as a result. As far as I am aware no independent or contemporaneous evidence had been provided to support that any

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symptoms he had were more likely than not Covid-19 infection. I do not therefore consider that this is enough to trigger cover. Mr C has also provided several extracts from Miss A’s medical records, which he says clearly meets the threshold to establish that there was an occurrence of Covid-19 at the premises. I have read all the medical evidence provided and have summarised parts of the it below: 17 March 2020 - Miss A had a chesty cough, with green sputum, shortness of breath and wheeziness for two weeks. 31 March 2020 - Miss A reported having had tinnitus for two weeks, a high temperature, sore throat and headaches. No cough. April 2020 - “ears [are] really causing issues” April 2020 - An ambulance service attendance note records: “coronavirus concern not identified at onset of call…had chest infection 4 weeks ago, had antibiotics for this – which then caused tinnitus - Earache travelling down throat”. 4 May 2020 - still having pain in ears, throat also hurting, no cough, no temperature and ongoing eustachian tube disfunction “since having cold 7 weeks ago”. June 2020 - sore throat since March 2020. 3 December 2025 – notes of a GP consultation recorded that Miss A reported a five- year history of tinnitus and “thinks it could potentially be linked to COVID symptoms have been present since she had it”. The GP made a referral to an ear nose and throat specialist. The first attendance recorded on 17 March 2020 reports that Miss A had been unwell for two weeks, which would put the start of her symptoms as roughly 3 March 2020. This was before the Government decision to require premises like D’s to close, so if it can be considered more likely than not that Miss A’s symptoms were due to her having Covid-19, then the claim would be covered. It is of course impossible to be certain whether Miss A had Covid-19 or not, in the absence of a test. I have to determine whether it is more likely than not that the symptoms she displayed in the period before the pub was required to close were Covid-19, rather than any other infection. As Mr C has said, sometimes the way symptoms develop over time can indicate whether the early symptoms were Covid-19. However, having considered everything very carefully, I am not persuaded it is more likely than not that it was Covid-19. I will explain why. The symptoms Miss A has reported throughout are common to several respiratory tract infections. While tinnitus may have been linked to Covid-19, it also has other causes. And Covid-19 infection was characterised by a dry continuous persistent cough, rather than a chesty cough, which is what Miss A reported. I also think it is significant that that there was no record of any mention by Miss A, or her treating doctors, that they had any suspicion that she was infected with Covid-19 at the time. The first record that Miss A says she thought she had been infected with Covid-19 was not until 2025. I also note that Miss A was prescribed antibiotics, which would treat chest infections. Mr C says they were also used for Covid-19 at the time but given the absence of any mention of Covid-19 in the medical notes, it seems clear they were not prescribed for Covid-19 at the time. Overall, I do not therefore consider that the symptoms Miss A reported indicate that Covid-19 was more likely the cause than any other illness respiratory illness.

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In addition, at the time Miss A first became unwell, Covid-19 cases in the UK were relatively low in number. The first recorded case in D’s local area was not until after the onset of Miss A’s symptoms. I accept what Mr C has said about underreporting of cases, and that it is possible Covid-19 was present in the area before 9 March 2020. However, I think it is likely that the number of infections with other respiratory tract infections in the area would have been significantly higher than the number of Covid-19 infections. Most people that were ill at the time did not have Covid-19. Some of the symptoms displayed were ones that have appeared in cases of Covid-19 but others are not common symptoms. Having considered all the evidence, I don’t think the policy extension provides cover in the circumstances of D’s claim for the March 2020 lockdown period and the underwriters were entitled to turn down the claim under this section of cover as there is not enough evidence of there having been an occurrence of Covid-19 at D’s premises. I do not consider that any other part of the policy would provide cover for the claim either. Mr C has said this is inconsistent with AXIS’s treatment of evidence about later lockdown periods but I can only consider whether D has established its claim for the March 2020 lockdown period in this decision. I realise this isn’t the outcome Mr C was hoping for. But, having considered the matter very carefully, I don’t think I can fairly require the underwriters to pay D’s claim for the March 2020 closure period. My final decision My final decision is that I don’t uphold this complaint. Under the rules of the Financial Ombudsman Service, I’m required to ask D to accept or reject my decision before 1 April 2026. Harriet McCarthy Ombudsman

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