¹ MacGillivray and Parkington, Insurance Law, 6th ed., no. 1751. Also for example, Arnould, Marine Insurance, 15th ed., no. 766, Brown, R. H., Marine Insurance, 4th ed., Vol. 1, p. 82.Google Scholar

² General Principles of Insurance Law, 4th ed., pp. 408–409.

³ For example, Lawrence v. Accidental Insurance Co. Ltd. (1881) 7 Q.B.D. 216.

⁴ Wayne Tank & Pump Co. Ltd. v. Employers' Liability Assurance Corp. Ltd. [1973] 2 Lloyd's Rep. 237, 240; Cairns L.J., ibid., p. 241. Athel Line Ltd. v. Liverpool & London War Risks Ins. Assn. Ltd. [1946] 1 K.B. 117, 122 per Lord Greene M.R.

⁵ Causation in the Law, p. 24. See also p. 86.

⁶ Cf. the view of Lord Blackburn that in such cases, once there is a clear view of the facts, it is best to keep away from such philosophical mazes: Inman SS. Co. v. Bischoff (1882) 7 App.Cas. 670; cf. also Parks, “Marine Insurance: Proximate Cause,” 10 J.M.L.C. 519, 521: “no attempt has been made to work out any philosophical theory of cause and effect and … it is probably just as well for commerce that the attempt has not been made.”

⁷ Op. cit., No. 1752.

^7a Nothing in life, it is said, is inevitable in an absolute sense. While accepting this, I retain the word ‘inevitable’ used by MacGillivray and Partington in the sense of what is inevitable' for all practical purposes.”

⁸ See also Margo, Aviation Insurance, p. 207.

⁹ [1918] A.C. 350. Cases decided before this case should be treated with caution unless approved by the court in the Leyland case or by higher courts since 1918.

¹⁰ [1894] 2 Q.B. 548.

¹¹ This view of Reischer v. Borwick may accommodate cases deciding that, per Margo, op. cit., p. 210, “when a risk results in the owners' loss of control over the property insured, any subsequent damage to or loss of property is attributable to the risk causing the loss of control. In other words, the proximate cause of a loss resulting from a taking followed by destruction is determined by the nature of the taking.” Sunny South Aircraft Service Inc. V. American Fire and Casualty Co., 40 So. 2d 276 (Fla., 1973).

¹² At pp. 550–551.

¹³ [1918] A.C. 350.

¹⁴ Lord Shaw at p. 369.

¹⁵ At pp. 369–370.

¹⁶ At p. 367. One wonders whether, at any stage, the shipowner would have been substantially better off if she had been beached. Nobody suggested that it should have been done, given the information and options available to the master at the time of decision. Indeed Lord Finlay suggested that in practical terms it could not have been done, saying at p. 354: “The only chance of saving the vessel was to take her into port.” In any event, the answer does not affect the analysis of the law: see below Rule 1 (b) (1).

¹⁷ See, for example, Lord Dunedin at p. 364 and Scrutton L.J. in the Court of Appeal [1917] 1 K.B. 891.

¹⁸ At p. 366.

¹⁹ At p. 362 (italics supplied). See also Lord Finlay at p. 355.

²⁰ (1881) 7 Q.B.D. 216.

^20a For discussion and criticism of this attitude see Morris, Enterprise Liability and the Actuarial Process–The Insignificance of Foresight, 70 Yale L.J. 554.

²¹ Carter v. Boehm (1766) 3 Burr. 1905; Re Yager & Guardian Assurance Co. Ltd. (1912) 108 L.T. 38, 45 per Channel J.; Theobald v. Railway Passengers Assurance Co. (1854) 10 Ex. 45, 58 per Pollock C.B. Some would say that the judges have had the underwriters too much in mind, while in no way denying the preoccupation: Hasson, 42 M.L.R. 544. See now the Law Commission Report no. 104.

²² Lawrence v. Aberdein (1821) 5 B. & Aid. 107.

²³ (1881) 7 Q.B.D. 216.

²⁴ See also Winspear v. Accident Insurance Co. Ltd. (1880) 6 Q.B.D. 42. The deceased was insured against “personal injury caused by accidental, external and visible means” having as its direct effect death within three months, but excluding such an accident if caused by disease. While fording a small river in Edgbaston, the assured had an epileptic fit and was drowned. The court held that the loss was caused by the peril insured against. It is not clear how deep the water was–one judge says “shallow“–or whether he was near the edge or whether other people were at hand. See also Montoya v. London Assurance Co. (1851) 20 L.J.Exch. 254; Fooks v. Smith (1924) 132 L.T. 486; the Leyland case and Reischer v. Borwick (above). In Gray v. Barr [1971] 2 Q.B. 554 the issue was whether, when Gray shot Barr, this was a peril within the policy, “bodily injury caused by accident,” that is to say, an accidental event leading to a particular kind of loss. The answer, in the view of Lord Denning M.R., depended on isolating the act which caused the loss and assessing whether it was accidental. In particular, was it the threatening and deliberate approach of Gray holding a gun or the subsequent act of grappling with Barr during which the fatal shot was fired? Lord Denning proceeded backwards from the loss to seek the “dominant cause,” namely the act which led “inexorably“ to the loss. It is respectfully submitted that this approach is right although his conclusion that the death of Barr was the inexorable result of the deliberate approach of Gray is wrong.

Salmon L.J. took such a broad view of the naming of “accident” that he did not need to isolate any particular act as the cause of death. Phillimore L.J., on the other hand, refused to isolate particular acts in the sequence, preferring to assess the character, accidental or not, of the incident as a whole.

In Marcel Beller Ltd. v. Hayden [1978] 1 Lloyd's Rep. 472 Judge Fay had to decide whether a car driver, who before the crash had drunk a considerable amount of alcohol, had died by accident. In answering this question affirmatively, the judge concentrated on the final act of driving, which he described as the “immediate cause” and this, it is submitted, is the correct application of Rule 1 (a).

²⁵ [1980] 1 Lloyd's Rep. 491.

²⁶ p. 505. Italics supplied.

²⁷ Yorkshire Dale SS. Co. Ltd. v. Minister of War Transport [1942] A.C. 691.

²⁸ Shaw v. Robberds (1837) 6 Ad. & El. 75; Harris v. Poland [1941] 1 K.B. 462; Trinder Anderson & Co. v. Thames and Mersey Marine Insurance Co. [1898] 2 Q.B. 114; Dixon v. Sadler (1839) 5 M. & W. 405, 414. Marine Insurance Act 1906, s. 55 (2) (a).

²⁹ Shaw V. Robberds, loc. cit., p. 84.

³⁰ A.-G. v. Adelaide Steamship Co. [1923] A.C. 292; Canada Rice Mills Ltd. v. Union Marine and General Insurance Co. Ltd. [1941] A.C. 55, 69 per Lord Wright.

³¹ Ibid., p. 298.

³² At pp. 301 et seq.

³³ Approved by Lord Wright in Yorkshire Dale Steamship Co. v. Minister of War Transport [1942] A.C. 691, 711: “Negligence is not a cause for this purpose.” See also The St. Oswald [1917] 2 K.B. 769, 773. Cf. cases like Becker, Gray & Co. v. London Assurance Corp. [1918] A.C. 101 where the conduct of the employee is alleged to link the peril to the loss, but does not do so because the “peril must operate directly and not circuitously” [1915] 3 K.B. 415–416; the peril had not begun to operate; or, to put it in terms of this paper, it could not be said that the action of the English or French fleets would inevitably have caused the loss either in the event or unless the master took the best course of action; the peril was still sufficiently removed that he might have avoided it by good fortune.

³⁴ [1941] A.C. 55.

³⁵ p. 70.

³⁶ (1928) 139 L.T. 386. See further, Ivamy, Fire and Motor Insurance, 2nd ed.. pp. 145–146.

³⁷ p. 391.

³⁸ Stanley v. The Western Insurance Co. (1868) L.R. 3 Exch. 71, 74.

³⁹ [1918] A.C. 350, 358.

⁴⁰ Obviously, the co-existence in time of an exception leading to a different peril is irrelevant: Hope's Trustees v. Scottish Accident Ins., 1896 3 S.L.T. 252

⁴¹ [1924] A.C. 431. See also the exception to liability for damage to property caused by natural decay: Sassoon (1965) 28 M.L.R. 180; cf. cases where the exception was insufficiently proximate, e.g., Winicofsky v. Army & Navy Ltd. (1919) 88 L.J.K.B. 1111.

⁴² Per Viscount Cave at p. 446.

⁴³ pp. 452–3.

⁴⁴ Per Lord Sumner at p. 466.

⁴⁵ “Take a given situation… what might be called a set stage. Into these conditions a new active force is interjected…” Beale, 33 Harv.L.R. 633, 643. The fact that one of these circumstances was abnormal or special does not necessarily deprive the master's act of the title of proximate cause: see Hart and Honored op. cit., p. 75. In insurance cases the policy enumerates and thus highlights the possible causes to which attention should be given.

If the approach suggested to Samuel v. Dumas is correct, reconsideration should be given to the definition of “peril of the seas.” It is usually said that the peril must be fortuitous and hence that, for example in Samuel v. Dumas, there was no such peril because the sea was let in deliberately. The same reason is said to support the view that ordinary wear and tear leading to a leak and hence to the entry of sea–water (Sassoon v. Western Ins. Co. [1912] A.C. 561) is not a peril of the sea. Yet a leak caused by rats would be a peril of the sea (Hamilton, Fraser & Co. v. Pandorf & Co. (1887) 12 App.Cas. 518). This artificial distinction is less apparent in early descriptions of peril of the sea, which talk more simply about “sea damage occurring at sea.” A return to this more rational and simple definition of peril of the sea is possible if fortuity is seen as an aspect, not of the peril, but of causation. Thus, for example, there was a peril of the sea in Samuel v. Dumas but it was not the proximate cause, that was the earlier act of scuttling which, in all the circumstances led inevitably to the loss. Equally in Sassoon, there was a peril of the sea but the proximate cause was the previous condition of the hull. Thus the language used in a recent American “wear and tear” case contains appropriate reference to causation (while paying lip service to fortuity as an aspect of the peril): The Green Lion [1974] 1 Lloyd's Rep. 593 (S.D.N.Y.).

⁴⁶ [1942] A.C. 691. See also The Clan Matheson [1929] A.C. 514, 525.

⁴⁷ Ionides v. Universal Marine Ins. Co. (1863) 14 C.B.(N.S.) 259; The Matiana [1921] 1 A.C. 99; The Geelong [1923] A.C. 191; The Ardgantock [1921] 2 A.C. 141; The Warilda [1923] A.C. 292; The Clan Matheson [1929] A.C. 514; Board of Trade v. Hain SS. Co. Ltd. [1929] A.C 534.

⁴⁸ At pp. 706 and 715.

⁴⁹ At p. 715.

⁵⁰ pp. 697–698 (Lord Sumner); 706–707 (Lord Wright); 715 (Lord Porter).

⁵¹ At p. 707.

⁵² At p. 716.

⁵³ [1923] A.C. 292, 301.

⁵⁴ Liverpool & London War Risks Association Ltd. v. Ocean SS. Co. Ltd. [1948] A.C. 243.

⁵⁵ Italics supplied.

⁵⁶ For an anthology of wording that does come under r. 1 (a) see Ivamy, General Principles of Insurance Law, 4th ed., pp. 406–409.

⁵⁷ (1877) 37 L.T. 356.

⁵⁸ Coleridge C.J. at p. 357.

⁵⁹ There was also discussion, inconclusive, of whether the event came within an “‘exception of injury’ occasioned by… wilfully exposing himself to any unnecessary danger or peril.”

⁶⁰ At p. 357.

⁶¹ See also Spinney's (1948) Ltd. v. Royal Insurance Co. Ltd. [1980] 1 Lloyd's Rep. 406: loss was “in consequence directly or indirectly of ‘Civil Commotion’ because the collapse of public order attendant upon the civil commotion permitted and encouraged the acts causing loss.” Marcel Better Ltd. v. Haydon [1978] 1 Lloyd's Rep. 472: “death or disablement directly or indirectly resulting from… deliberate exposure to exceptional danger.” Cf. Ivamy, General Principles of Insurance Law, 4th ed., p. 416.

⁶² [1973] 2 Lloyd's Rep. 237; [1974] Q.B. 57. See also Taylor v. Dunbar (1869) L.R. 4 C.P. 206. Cf. Saqui and Lawrence v. Stearns [1911] 1 K.B. 426 in which the Court of Appeal found two separate causes to be concurring causes and reached a similar conclusion. However, if the issue of causation had been argued before them in the form it takes today, it is submitted that the court would have found a single proximate cause.

⁶³ As a first ground of decision, the court preferred this as the single proximate–cause of the fire. For various reasons, some indicated above, this view is not convincing.

⁶⁴ [1973] 2 Lloyd's Rep. at p. 240. See further Coote, Exception Clauses.

⁶⁵ Jason v. British Traders' Insurance Co. Ltd. [1969] 1 Lloyd's Rep. 281, 291.

⁶⁶ [,1903] 1 K.B. 584. See also Re Etherington and Lancashire and Yorkshire Accident Insurance Co. [1909] 1 K.B. 591

⁶⁷ In Re Hooley Hill Rubber & Chemical Co. Ltd. and Royal Insurance Co. Ltd. [1920] 1 K.B. 257, 271–272.

⁶⁸ [1920] 1 K.B. 257, 268–269. The Court of Appeal approved Stanley v. Western Insurance Co. (1868) L.R. 3 Exch. 71 and was itself approved by the Privy Council in Curtis and Harvey (.Canada) Ltd. v. North British Mercantile Insurance Co. [1921] 1 A.C. 303.

⁶⁹ [1969] 1 Lloyd's Rep. 281.

⁷⁰ Italics supplied.

⁷¹ See Jason v. British Traders' Insurance Co. Ltd. [1969] 1 Lloyd's Rep. 281, 291; Hart and Honoré, op. cit., pp. 31 et seq.

⁷² See, in particular, Hardy v. M.l.B. [1964] 2 Q.B. 745, discussed below and Tinline v. White Cross Insurance Association [1921] 3 K.B. 327.

⁷³ Cf.Beresford v. Royal Insurance Co. Ltd. [1938] A.C. 586 in which the House of Lords held that suicide was covered by a policy of life insurance–as a matter of construction–although recovery was refused as a matter of public policy at a time when suicide was a crime.

⁷⁴ Harris v. Poland [1941] 1 K.B. 462. See also Shaw v. Robberds (1837) 6 Ad. & El. 75; Trinder, Anderson & Co. v. Thames & Mersey Marine Ins. Co. [1898] 2 Q.B. 114; Lewis v. G.W.R. (1877) 3 Q.B.D. 191, 206 per Blackburn J.

⁷⁵ It is sometimes said that an intended consequence cannot be too “remote.” This notion seems to have no application in insurance law.

⁷⁶ (1939) 64 Ll.L.Rep. 345.

⁷⁷ pp. 348–349.

⁷⁸ Hardy v. M.I.B. [1964] 2 Q.B. 745, 760 per Lord Denning.

⁷⁹ (1830) 4 Bligh N.S. 194.

⁸⁰ p. 211.

⁸¹ [1971] 2 Q.B. 554, 581.

⁸² Hardy v. M.I.B. [1964] 2 Q.B. 745, 770. It has also been suggested that the civil law is an inappropriate means of enforcing moral standards: Devlin, The Enforcement of Morals, Chap. III. Cf. Shand [1972A] C.L.J. 152.

⁸³ See below (c).

⁸⁴ In Cleaver v. Mutual Reserve Fund Life Association [1892] 1 Q.B. 147, 152. See also Re Cunigunda Crippen [1911] P. 108, 112; and Hall v. Knight & Baxter [1914] P. 1, 8.

⁸⁵ In Beresford v. Royal Insurance Co. Ltd. [1938] A.C. 586, 598.

⁸⁶ [1977] 3 All E.R. 570. Cf. Bird v. Appleton (1800) 8 Term Rep. 562; the insurance of goods bought with the proceeds of an illegal cargo was enforced.

⁸⁷ At pp. 580–581.

⁸⁸ [1964] 2 Q.B. 745.

⁸⁹ At p. 760.

⁹⁰ See also Fry L.J. in Cleaver v. Mutual Reserve Fund Life Association [1891] 2 Q.B. 147, 152.

⁹¹ At p. 769. See also Tinline v. White Cross Insurance Association Ltd. [1921] 3 K.B. 327; James v. British General Insurance Co. Ltd. [1927] 2 K.B. 311; Leggate v. Brown (1950) 66 (2) T.L.R. 281.

⁹² Gray v. Barr [1971] 2 Q.B. 554, 581 per Salmon L.J. In 1970, there were 30 recorded cases of homicide using firearms; in the same year there were 685 recorded cases of causing death by reckless or dangerous driving. See also R. V. National Insurance Comr., ex parte Connor [1981] 1 All E.R. 769.

⁹³ See generally, Devlin, op. cit., Treitel, The Law of Contract, 5th ed., Chaps. 11 and 12; Anson, Law of Contract, 25th ed., Chap. IX.

⁹⁴ For example, Cleaver v. Mutual Reserve Fund Life Association [1892] 1 Q.B. 147.

⁹⁵ Above, p. 304.

⁹⁶ Geismar v. Sun Alliance & London Insurance Ltd. [1977] 3 All E.R. 570, 576 per Talbot J. See also Ailion v. Spiekermann [1976] 1 All E.R. 497, 500 per Templeman J.

⁹⁷ See Hardy v. M.I.B. [1964] 2 Q.B. 745, 765 per Pearson L.J.; Cleaver v. Mutual Reserve Fund Life Association [1892] 1 Q.B. 147, 153, 155 per Lord Esher M.R.

Goldsoll v. Goldman [1915] 1 Ch. 292; Putsman v. Taylor [1927] 1 K.B. 637.

⁹⁹ Frank W. Clifford Ltd. v. Garth [1956] 2 All E.R. 323; Ailion v. Spiekermann [1976] 1 All E.R. 497.

¹ Cf. also the implied warranty arising under the Marine Insurance Act 1906, s. 41, that the insured adventure be lawful. Breach of warranty will entitle the insurer to terminate the contract in case of breach regardless of any connection between such breach and loss suffered by the insured. In other contexts, where wilful misconduct is equated with recklessness, it is easier to establish a stable causal connection; see for example, on article 25 of the Warsaw Convention Shawcross & Beaumont, Air Law (3rd ed.), p. 425; on manslaughter, Glanville Williams, Textbook of Criminal Law, pp. 72–4.

² I wish to record my thanks to Professor G. Calabresi of Yale, Mr. R. W. M. Dias of Cambridge and Professor J. P. S. McLaren of Calgary for comments on an earlier draft of this paper; their helpfulness was inevitable, but their liability excepted, for I remain the proximate cause of my errors.