Causation Flashcards
What is the general principle of ‘all risks’ policies?
A loss is covered unless specifically excluded.
How can proximate cause be defined? Case law
Pawsey v Scottish Union
The active efficient cause that sets in motion a chain of events, bringing about a result without the intervention of any force started and working actively from a new and independent source.
What is the recognised test for causation? Case law
The ‘but for’ test.
Lloyds TSB General Ins v Lloyds Bank Group Ins Co Ltd
Test for causation in insurance law is the same as in tort.
‘But for’ the negligence or wrongdoing of the defendant, the damage would not have occurred.
What is the position where there are two effective causes of loss, one insured peril & one excluded cause? Case law
The insured cannot recover.
Wayne Tank & Pump v EL Assurance Corp
Can an insured peril be the proximate cause even if the property was unfit to withstand foreseeable events?
Yes.
What is the position where there are two effective causes of loss, one insured peril & one not insured (but not specifically excluded) cause? Case law
The insured can recover.
Covid-19 - Orient Express Hotels v Generali
What 7 principles determine whether damage is accidental? Case law
Leeds Beckett Uni v Travelers Ins
1. Prove loss was caused by a fortuitous event (but not exact nature). Foreseeability is irrelevant
2. ‘Accidental’ is not wilful or deliberate
3. Damage must be caused by a chance event, against the risk of which insurance has been taken out
4. Accidental does not include anything which the parties thought was going to happen when the policy was taken out
5. Inevitably is assessed at the time the insurance is taken out
6. Accidental doesn’t include damage due to the inherent characteristics of the property - including wear & tear, from normal use or due to design or construction defects
7. Policy to be construed in accordance with the ordinary rules of construction
Which principles are to be used to distinguish between accidental damage and damage caused by gradual deterioration?
Deterioration- progressively worse over time.
Gradual deterioration- progressive by degrees, rather than sudden & catastrophic
Where does the burden of proof lie for showing an insured peril caused the loss?
The insured (on the balance of probabilities).
Where there is accidental damage cover the insured need only prove the damage was accidental, not the precise cause.
