Causation in Insurance Contract Law (Contemporary Commercial Law)

Causation is a crucial and complex matter in ascertaining whether a particular loss or damage is covered in an insurance policy or in a tort claim, and is an issue that cannot be escaped. Now in its second edition, this unique book assists practitioners in answering one of the most important questions faced in the handling of insurance and tort claims. Through extensive case law analysis, this book scrutinises the causation theory in marine insurance and non-marine insurance law, and provides a comparative study on the causation test in tort law. In addition, the author expertly applies causation questions in concrete scenarios, and ultimately, this book provides a single volume solution to a very complex but essential question of insurance law and tort law. Thoroughly revised and updated throughout to include the Insurance Act 2015, several landmark cases and potential impacts of the Covid-19 pandemic, the second edition also features an introduction re-written to clarify elementary and central questions of causation in insurance law and tort. Additionally, it also provides three brand new chapters on Factual Causation and Legal Causation, Causation and Interpretation, and Causation and Measure of Losses to provide a deeper and more thorough analysis, comparing academic approaches and juridical approaches to addressing causation issues in insurance claims. This book is an invaluable and unique guide for insurance industry professionals, as well as legal practitioners, academics and students in the fields of insurance and tort law. Cover Half Title Series Page Title Page Copyright Page Dedication Table of Contents Foreword Preface Table of Cases Table of Legislation Chapter 1 Introduction to the law of insurance causation Chapter 2 Causation and interpretation Introduction 2.1 Theoretical accounts of causation in the law 2.1.1 Is there common-sense causation? 2.1.2 Actual causation 2.1.3 The bifurcation of cause-in-fact and cause-in-law 2.2 Juridical approaches to causation issues 2.2.1 Textual interpretation 2.2.2 Contextual interpretation and common-sense principles 2.3 The relationship between interpretation and causation Concluding remarks Chapter 3 Tests of causation in insurance contract law Introduction 3.1 Nature of insurance and insurance causation 3.2 Historical development of tests of causation in English marine insurance case law 3.2.1 Prior to the Marine Insurance Act 1906 3.2.2 After the Marine Insurance Act 1906 3.3 Causal terminology: shades of semantic difference 3.3.1 Scalarity of causation 3.3.2 Variations of “caused by” 3.3.3 Contractual variations as to “proximately” 3.4 Intervening causes (again) 3.5 Counterfactual dependence in insurance causation 3.6 The inevitable consequence test Chapter 4 But-for test in tort Introduction 4.1 How does the basic but-for test operate? 4.1.1 One tort 4.1.2 Successive torts 4.2 When the but-for test fails 4.2.1 Material contribution to injury 4.2.2 Material increase to risk 4.2.3 Loss of chance 4.3 Tort and liability insurance 4.4 Foreseeability: ending a causal chain Chapter 5 Concurrent causes Introduction 5.1 Room for concurrent causes 5.2 Definitions of concurrent cause 5.2.1 Some baselines 5.2.2 Two independent perils of equal efficiency? 5.2.3 Cumulative damage 5.3 Rules established by case law 5.3.1 Insured peril concurrent with uninsured peril 5.3.2 Insured peril and excluded peril 5.3.3 Internal causes and external causes 5.4 Insurance recovery of concurrent causes 5.4.1 All or nothing 5.4.2 Proportionate remedy 5.4.3 Anti-concurrent causes clause Chapter 6 Defining and interpreting the cause of loss Introduction 6.1 All-risk insurance 6.2 Marine risks 6.2.1 Maritime perils 6.2.2 Perils of the sea 6.2.3 The Inchmaree Clause – “due diligence proviso” 6.2.4 Unseaworthiness as a cause of loss 6.3 Non-marine risks 6.3.1 Life cover: accidents 6.3.2 Liability insurance: fault or negligence of the assureds 6.3.3 Business interruption cover: the FCA test case and subsequent decisions 6.3.4 Reinsurance: an occurrence 6.4 Common exclusions 6.4.1 Wilful misconduct of the assureds 6.4.2 Delay 6.4.3 Nature of the subject matter insured 6.5 Apprehension of peril and mitigation measures Chapter 7 Causation and machinery for qualifying losses Introduction 7.1 The machinery of calculating losses 7.2 Aggregation of losses 7.3 Assessment of quantum in the cases of COVID-19-related BI cover Chapter 8 Burden and standard of proof 8.1 Balance of probabilities in insurance causation 8.2 Burden of proof on assured 8.3 Burden of proof on insurers 8.4 Generic perils: all-risk 8.5 Unexplainable losses 8.5.1 Unexplainability 8.5.2 Presumptions as to burden of proof in unexplainable losses 8.5.3 Mysterious disappearance clauses Chapter 9 Causal notions under Insurance Act 2015: Beyond the proximate cause of loss Introduction 9.1 Breaching terms of insurance contracts 9.2 Assured’s duty of fair presentation 9.3 Fraudulent claims vs collateral lies Index