Isabel Hitching KC successfully argues that World War II bomb damage is excluded from insurance cover
Isabel Hitching KC obtains declaration that War Exclusion applies to damage caused by controlled detonation of World War II bomb.
In a landmark decision the High Court for the first time considered whether a War Exclusion clause applied to damage caused by a World War II bomb dealt with by a controlled detonation.
Allianz issued an insurance policy to the University of Exeter covering damage to property unless excluded. The War Exclusion excluded damage “occasioned by war”, which the parties agreed was a proximate cause test.
During the term of the policy a 1000kg/2,200lb SC1000 thin cased, high explosive bomb dropped by German forces during World War II, and nicknamed “the Hermann” after Hermann Göring, was discovered on land adjacent to the University’s campus. A safety cordon was promptly established and halls of residence falling within it were evacuated.
The Explosive Ordnance Disposal Team from the Royal Logistic Corps determined that the condition of the bomb (due to age, rusting, and uncertainty as to whether it was booby trapped) was such that it could not safely be removed from the site for controlled explosion, nor could a trepanning method be employed to remove some or all of the explosive. The post incident report disclosed by the MOD noted that “the only realistic course open to the team” was to detonate the bomb on site in a controlled explosion adopting safety measures designed to reduce, as far as possible, the consequences of such an explosion. The operation was described in the report as “successful” and the University did not criticise it in court. No-one was injured but some damage, which the report stated was “unfortunate, but unavoidable”, including to the University’s halls of residence, was caused.
The University accepted that the dropping of the bomb was an act of war within the meaning of the Exclusion clause. It argued however that this act was neither “the” proximate cause nor even “a” proximate cause of the loss and that the controlled detonation should be viewed as the sole proximate cause.
In a careful and thorough judgment HHJ Bird (sitting as a Deputy of the High Court) rejected the University’s submissions holding that:
- The Policy did not disapply the usual rule on concurrent proximate causes that if there are concurrent proximate causes, one insured against and the other excluded, the exclusion applies (see Wayne Tank and Pump v Employers Liability Assurance Corp. [1974] QB 57 cited at para.174 of FCA v Arch [2021] UKSC 1 and para 27 of Brian Leighton (Garages) Limited v Allianz [2023] EWCA Civ 8).
- Therefore, Allianz only needed to prove that the dropping of the bomb was “a” proximate cause.
- “Proximate cause” meant the efficient or effective cause, or the agency of change, viewed with common sense as established in Reischer v Borwick 1894 2 QB 548 and Leyland Shipping Company v Norwich Union Fire Insurance Society Limited [1918] AC 350 and reconfirmed in FCA v Arch.
- Applying this test the dropping of the bomb was “the” proximate cause.
“ … It is the presence of the bomb that leads to both the need for the detonation and the inevitability of the damage. As a matter of common sense, the dropping of the bomb and its consequent presence at the site, was the proximate cause of the damage … The defendant submits that the passage of time means that this conclusion is wrong. I am unable to accept that submission … Is there any suggestion that the passage of time had reduced the potency of the explosive load of the bomb? In my view there is not. It is clear from the incident report (paragraph 10 above) that the bomb as an object had degraded over time. The photographs clearly show that it had rusted (as the parties agree) and the incident report makes specific reference to the deterioration of the bomb’s fuze. There is however no suggestion at all that the explosive load of the bomb had become any less lethal over time … the passage of time had no relevant or material impact on the danger posed by the bomb.” (Judgment paragraphs 46, 47 and 49.)
- Alternatively the dropping of the bomb was “a” proximate cause.
“ … the alternative analysis must be that the damage was (as a matter of common sense) caused by the combined effect of the detonation and the presence of the bomb.” (Judgment paragraph 54.)
- The loss was therefore excluded by the War Exclusion clause.
Isabel Hitching KC appeared for Allianz, instructed by Olu Dansu of DAC Beachcroft LLP
A copy of the full judgment can be found here.
