Doctrine of Proximate Cause under Insurance Law

Doctrine of Proximate Cause under Insurance Law

HIDAYATULLAH NATIONAL LAW UNIVERSITY

RAIPUR, CHHATTISGARH

A PROJECT OF INSURANCE LAW

ON

Doctrine of Proximate Cause under Insurance Law

Submitted to:

Dr. Y.Papa Rao

Date of submission: 06/04/2018

Submitted by:
Devendra Dhruw
Semester X
Roll no. : 59
Section: C (Political Science Major)

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 Doctrine of Proximate Cause under Insurance Law

TABLE OF CONTENTS
ACKNOWLEDGEMENTS 3

CHAPTER-1- 4

INTRODUCTION: 4

OBJECTIVES 5

RESEARCH METHODOLOGY 5

HYPOTHESES 5

CHAPTER-2- 6

MEANING AND SCOPE OF RISK: 6

CHAPTER-3- 7

PROXIMATE CAUSE IN INSURANCE LAW: 7

MEANING OF ‘PROXIMATE’: 8

JUDICIAL INTERPRETATION OF THE DOCTRINE OF CAUSA PROXIMA: 9

CHAPTER-4- 12

TESTS FOR DETERMINING PROXIMATE CAUSE: 12

CHAPTER-5- 14

APPLICATION OF RULE IN DIFFERENT FORMS OF INSURANCE: 14

IN CASE OF LIFE INSURANCE: 14

IN CASE OF FIRE INSURANCE: 14

IN CASE OF MARINE INSURANCE: 14

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 Doctrine of Proximate Cause under Insurance Law

PRACTICAL APPLICATION OF THE DOCTRINE: 16

CONCLUSIONS AND SUGGESTIONS: 17

SUGGESTIONS: 18

BIBLIOGRAPHY: 19

ACKNOWLEDGEMENTS

First and foremost I would like to thank our course teacher Dr. Y Papa Rao, Faculty, Insurance

Law, HNLU, for allotting me this topic to work on and whose help and assistance enabled me to

move ahead with this topic.

I would like to thank my friends, who gave me their precious time for guidance and helped me a
lot in completing my project by giving their helpful suggestion and assistance. I would like to
thanks my seniors for their valuable support. Last, but not the least I thank the University
Administration for equipping the University with such good library and I.T. facilities, without
which, no doubt this work would not have taken this shape in correct time .

DEVENDRA DHRUW

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 Doctrine of Proximate Cause under Insurance Law

CHAPTER-1-

INTRODUCTION:
There are several perils which can destroy the life and properties by fire, earthquake, war, riot,
peril of the sea etc. The insured chooses to indemnify the loss caused due to some of them. The
insurer’s liability under the policy arises only if the cause of loss in a peril insured against and
not expressly excluded. Risk and peril are interchangeably used. A risk is the uncertainty of loss
and peril is the sources of loss.

Since every event is the effect of some cause, causation is indeed a significant part in the law of
insurance. 1Under any contract of insurance, the question of causa proxima (or proximate cause)
of a loss plays an important role. The doctrine of causa proxima is based on the principle of
cause and effect. Causa Proxima is a latin phrase which is based upon a maxim: “in jure non
remota causa,sed proxima spectator”. The maxim means in law the immediate and not the
remote cause is to be considered in measuring the damages. In simple words, it means proximate
and not the remote cause shall be taken as the cause of the loss. When the loss has been caused
by a number of causes; the nearest cause will be taken into consideration for fixing the liability
of the insurer.

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 Doctrine of Proximate Cause under Insurance Law

By the term “proximate cause” is not meant the latest i.e. proximate in time, but the

direct, dominant and efficient cause.

In defining causa proxima, Lord Bacon said- “It were indefinite for the law to consider the

causes of the causes and their impulses one another, therefore it contained itself with the

immediate cause and rejects all causes preceding the proximate cause as too remote.”

According to John Wright- “The proximate cause is that cause which is directly related
to the loss”

Thus, the rule of proximate cause means the immediate cause or the direct, most dominant and

effective cause of which loss is natural shall be considered.

OBJECTIVES

1. To study the concept of proximate cause doctrine;

2. To appraise the applicability of proximate cause doctrine under insurance law;

3. To study the conflict between proximate cause and remote cause;

RESEARCH METHODOLOGY
Nature of research work: This project “Doctrine of Proximate Cause under Insurance Law” is a

“Doctrinal” work. Doctrinal research includes studying books and established literature and not

actually going to the field and doing empirical research.

Source of research work: The sources of this project are both primary (bare acts,

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 Doctrine of Proximate Cause under Insurance Law

statutes, etc) and secondary sources (books given by different authors, journals, internet, etc).

HYPOTHESES
1. Proximate cause is used to examine how a loss occurred and how many may have played

a role in causing the loss. Proximate cause refers to the initial action that caused a loss.

The starting point in the chain of events that led to a loss.

2. It has been said that determining the proximate cause of a loss is simply the application of

common sense, and in many of the cases that would appear to be so.

CHAPTERISATION
Chapter I introduce the topic of the research work by explaining the meaning and concept of

Proximate Cause.

Chapter II talks about meaning and scope of Risk.

Chapter III talks about the application of Proximate Cause in Insurance law.

Chapter IV deals with the test for determining Proximate Cause.

And Chapter V finally talks about application of rule in different forms of insurance including

fire, life and marine insurance.

CHAPTER-2-

MEANING AND SCOPE OF RISK:

A contract of insurance is a contract under which the insurer undertakes to protect the

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 Doctrine of Proximate Cause under Insurance Law

insured from a specified loss if it occurs. The insured is afraid of the loss which is called risk

of loss. “Risk” is the life-blood of an Insurance Contract. If there is no risk, no insurance is

possible. It is an insurance which is the insurance of risk management.

In a contract of insurance, the insurer undertakes to indemnify the insured from the
apprehended loss if it occurs for a consideration called premium. The insurer calculates the
premium according to the probability, nature and extent of risk from which the insured desires to
be protected. The risk of loss is co-extensive with the value of the insurable interest the insured
has.

The determination of the dimensions of the risk covered by the contract is important to both the

parties; it is important to the assured as from that he can know the exact extent of the risk

covered by the contracts so that he may adjust his economic affairs and to the insurer because he

has to calculate the exact premium required to cover it.

Scope of Risk:

The insurer indemnifies the insured only against the loss caused during the period insured; for

which the direct and proximate cause is the peril insured against. In,

Wilson & Sons’Co. v. Xantho1,House of Lords explained the scope of risk and when the

insurance company can be made liable:

i. On negligent act of the servant of insured, insurance company will be made liable.

ii. On negligent act of stranger, insurance company will be made liable.

iii. Wilful act of the servants and of the strangers, insurance company will be made liable.

1 [1887] 12 AC 509 (HL)

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iv. If the loss is caused by the wilful misconduct of the insured, insurance company will not

be made liable.

v. Is loss occurred due to ordinary wear and tear, insurance company cannot be made liable.

vi. Inherent defects and manufacturing defects does not include the risk and so for that

insurance company cannot be made liable.

CHAPTER-3-

PROXIMATE CAUSE IN INSURANCE LAW:

Causation is a fundamental concept or component of insurance and insurance law. Assured’s
desire to indemnity against the risk of certain types of loses; underwriters issue policies which
provide such indemnity in the event of certain perils, often with other perils being specifically
excluded. Any coverage provided by the policy is contingent upon there being a casual
connection between the loss and the covered peril.

In Insurance law, as in tort law it is recognised that loss or damage may be the product of
multiple causes. The maxim ‘in jure non remota causa, sed proxima spectator, means ‘in law
the immediate and not the remote cause is to be considered in measuring the damages’, is very
much applicable in insurance also. The proximate cause of the loss need not be the last event
immediately preceding the loss in chronological sense; the last event may be merely a link in the
chain connecting the loss with the proximate cause.

There must be relationship between cause and effect. The loss should be connected with the

cause by a chain of circumstances leading naturally and in the ordinary cause

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of events from one to the other. The cause will then be the proximate cause, however long the
chain of events might be. Most losses are very straightforward and cause is obvious; or in the
context of the all risks policy, it will be obvious that exclusion applies or it does not. Problem
arises when there are exceptions in the policy or where more than one cause may have operated
or where one or more of those causes is not covered by the policy. In such cases, it is essential to
establish the proximate cause before it can be confirmed that the loss is covered by the policy. If
one of the two or more perils, operating together, is covered by the policy (or in the case of the
all risk policy, not excluded), that will be sufficient for the policy to respond to the loss.

The doctrine of causa proxima is applied to ascertain whether or not the insurer is liable.
Obviously the issue of proximate cause would arise only when the loss is the result of two or
more causes acting simultaneously or in succession- one after the other. If the loss is brought
about by only one event, there would be no problem to decide the question of liability. There is
no clear definition in law to clear the application of this principle, it is only through judicial
interpretation that the position and application of this principle is been clarified.

MEANING OF ‘PROXIMATE’:

The word ‘proximate’ has a definite meaning. It does not mean the cause nearest to the
loss in profit of time. Rather it is the cause seen as effectual in producing the result. It implies the
factor that is most dynamic, dominant or effective in causing the loss. The other causes are
considered as remote. The law doesn’t concern itself with the cause of causes.

For example- let a shopkeeper ‘A’ insured his glass plate against loss or damage arising from

any cause except fire. Fire broke out in a neighbor’s property, as a result

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of it, a mob gathered. The mob then started a riot and broke the glass plate.2

The doctrine of proximate cause is clear enough in theory but poses problems in practical

application. The selection of the proximate cause is by no means a simple or easy task. Let

us consider some instances:

1. Single Cause: If the loss event is the result of a single cause, which is an insured peril,

this is clearly the proximate cause and there is liability under the policy. For example,

property burnt by fire.

2. Concurrent Causes: Loss events may happen as a result of concurrent causes (causes

which happen together). If none of the perils involved have been excluded under the

policy, it may be held that there is liability under the policy if any one of the causes is an

insured peril. The other causes may be ignored.

For example, a man with heart disease sustains an accident, which coupled with the weak

heart, leads to his death. It is held that the accident was the proximate cause.

3. Successive Causes: Where a number of causes operate one after the other and the
original cause happens to be an insured peril, there is liability under the policy. On the
other hand if the direct chain of events can be traced to an excepted peril there is no
liability. A third scenario is where a chain of events is broken by intervention of a new
and independent cause. Liability will then depend on whether new cause was an insured
peril or an excepted peril.

Onus of Proof: A final point about proximate cause- in the event of loss, the onus of proof

(burden of proof) is on the insured. He has to prove that his loss was

2 See question paper of Mid Term Examination, March-2015, Sem-X, Insurance Law optional-
1, HNLU, Raipur.

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proximately caused by an insured peril. The onus of proof shifts to the insurer if the latter

maintains that the loss was caused by an excepted peril.

JUDICIAL INTERPRETATION OF THE DOCTRINE OF CAUSA PROXIMA:

Courts have followed the principle keeping in mind the formula that the insurance company can
only be made liable when the insured event the real cause must coincide with each other, i.e.
they both has to be the same so as to make insurance company liable. The judicial development
of the doctrine of proximate cause can be traced with the following leading cases on the point:

One of the most leading cases on this point, which in late 19 th century clarified the application of

this principle while calculating the liability of the Insurance Company, is;

Hamilton,Fraser and Co. v. Pandrof & Co.3 In this case, the ship was insured alongwith the
goods. Event insured against under the policy was collision with other ships or island on sea. The
damage caused to the cargo was because of the seawater escaping through a hole in the pipe
gnawed by rats. Insurance Company contented that the loss was not caused due to escape of
water but because of the rats who cut the pipe by their sharpened teeth.

Court before reaching to the conclusion, considered the following chain of causes:

Presence of ra rats ungry gnawed the pipe

3 [1887] 12 AC 518, 524.

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gravitation of water escape of water loss.

The real cause near to the loss is escape of water. And so, the Insurance Company were held

liable.

Another leading case, during this period, is Pink v. Flemming4. There was an insurance on a
cargo of oranges and was warranted free from partial loss or damage unless such loss or damage
was consequent on collision with any other ship. The ship collided with another ship but there
was no loss caused to the goods. Because of the collision, ship was taken to the port for
repairing. Engineers advised for the unloading of oranges as only after that ship can be repaired.
The oranges got damaged in the course of unloading and reloading.

The question was whether or not this damage to the cargo was a consequence of or was

caused by the collision within the meaning of the policy. The court held that the loss was not

recoverable. Given below is the chain of causes:

Collision defect in the shi oranges were unloaded for repairing th p

reloading loss.

Since, unloading and reloading is the real cause for damage to oranges, so insurance company

cannot be made liable.

In Marsden v. City & Country Assurance Co. 5 is another leading case based on this principle. In
this case Marsden took a Fire Insurance policy for his shop. On one evening shop premises
caught fire due to which a disorderly mob gathered and entered into the premises and looted it
and due to which huge loss was occurred. Claim was made to the insurance company by
Marsden. It was held that loss was due to loot done by mob and not by fire and so the insurance
company was not held liable.

4 (1890) 14 QBD 396 (CA).

5
(1886) LR 1 CP 232

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In yet another leading case on the point is Insitt v. Railway Passengers Assurance Co. 6 In this
case an insured booked a ticket and travelled but due to the negligence of the railway driver, he
received permanent injury on his shoulders but did not die. After few days he met with a road
accident and died. The legal representatives contented that due to injury caused to the deceased
in train, he died in street accident and so the real cause of the death is railway accident and for
that insurance company will have to pay the compensation.

It was held that the railway accident and the death do not coincide with each other.

Railway accident disability caus road acci death.

It was the road accident and not the railway accident which is the real and proximate cause for

the death. Hence, Railway Passengers Assurance Co. was not liable.

In Leyland Shipping Co. Ltd. v. Norwich Union Fire Insurance Society 7, an insured cargo ship,
holed by a torpedo and having been anchored in an outer harbour while awaiting repair,
eventually became a total loss due to the strain of the wind and seas, and of repeated grounding
at low tides. The latter were said to be incidents of insured perils of the sea; however “all
consequences of hostilities of warlike operation” were excluded from cover. All of the Law
Lords agreed with both the trail judge & the Court of Appeal, that the proximate cause of this
loss was the torpedo.

Lord Shaw observed: To treat causa proxima as the cause which is nearest in time is lost of
the question causes are spoken as if they were distinct from one another as beads in a row of
links in a chain, but if a metaphysical logic has to be referred to, it is not wholly so, the chain of
causation is a handy expression but the figure is inadequate, causation is not a chain, but a net.

6 [1889] 22 QBD 504

7 [1918-19] All ER Rep 443

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The learned judge explained that the proximate cause of an event is the real and efficient cause
to which the event may be attributed and the application of doctrine varies according to the
question whether the loss was caused by the insured against. He explained that the cause which
is truly proximate is that which is proximate in efficiency.

CHAPTER-4-

TESTS FOR DETERMINING PROXIMATE CAUSE:

In Yorkshire Dale S.S. Co. v. Minister of War Transport, 8 Lord Wright explained the primary
test to determine the proximate cause. The choice of the real or efficient cause must be made by
applying standards. Causation is to be understood as the man in the street and not as either the
scientists or metaphysician would understand. The Court formulated some general rules or
guidelines for determining the proximate cause-

1) Where the perils are acting consecutively in unbroken sequence, i.e. one peril is caused

by and follows from another peril.

2) Where perils are acting consecutively in unbroken sequence.

3) Where perils are coming concurrently, jointly and simultaneously.

Based on these rules, courts have evolved certain tests to determine proximate cause for the loss

and when the liability of insurance company will arise and when will it is able to avoid the

policy.

Courts have evolved these tests keeping in mind the two types of events- excepted event and

insured event. Both the events act in different manner, depending upon the circumstances of the

case. The tests for determining the real causes based on excepted and insured events are as

follows.

8 [1942] AC 69

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I. Excepted Event followed by Insured Event followed by loss:

When an insured event follows an excepted event causing loss, insurer is not liable. This

may be illustrated by the following leading case on this point:

Cornish v. Accident Insurance Co.9. In this case insured took the accident insurance policy

under which the insured event was the death caused by accident included railway accident.

Under the policy there was an exception clause which says that the insurer will not be liable if

the death is caused by the insured’s negligence.

There were two up and down railway tracks which the insured wanted to cross. The insured, a
person with normal sight and hearing, crossed a main line and waited for on train to pass and was
crossing in front of an approaching second train which he ought have seen, when he was run over
and killed. Though the death was caused by the insured event, it is attributable to his want of care
and hence was held to fall within an exception clause of the policy. So the insurer was not held
liable.

II. Insured Event followed by Excepted Event followed by loss

When excepted event follows an insured event causing loss, insurer is liable.

This may be illustrated with the help of the following case:

In Filton v. Accidental Insurance Co.10, an insured took a Life Insurance policy which

had an exception clause that death if caused due to ‘hernia’ insurance company will not be liable.

Insured one day fallen from a greater height and admitted to a hospital and suffered from hernia.

Though the death was caused due to hernia but still

9 (1889) 23 QBD 453 (AC)

10
(1864) CBNS 122

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the insurance company were made liable because hernia was caused by an accident fall and due

to that the assured died.. it was held that the death was due to the fall and not due to hernia.

III. Excepted Event and Insured Event occur simultaneously and cause loss.

Where the insured event and excepted event responsible for loss equally, the insurer shall

be liable or shall not be liable, it is totally dependent upon the circumstances and facts of

the cases.

Wayne Tank and Pump Co. v. Employer’s Liability Assurance Corporation11 is a

leading case which is explanatory of this point.

In this case the Company was an old mill. a vital part of the mill became defected as a result of
which the part replaced by a new part. It is very risky to replace the old part by the new part in
the machine. They by realising the risk took a liability insurance policy, which had an exception
clause that if the quality of the new part is not good and accident caused due to this co. will not
be liable. The new part was defected and the machine was left by the servant unattended causing
loss. Court held that the insurance company was not liable for such loss.

CHAPTER-5-

APPLICATION OF RULE IN DIFFERENT FORMS OF INSURANCE:

IN CASE OF LIFE INSURANCE:

Every person prefers to take life insurance policy on his life to safeguard his family after his

death. In life insurance the insurer proceeds on the calculation of the average

11 [1974] QB 57

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duration of human life. The insurance is against death due to natural causes. If death occurs other
than the natural cause, i.e. if the assured voluntarily puts an end to his life the insurer is not
liable. This is on the public policy and also by the maxim causa proxima. In other words, death
caused due to committing suicide, insurer will not be liable.

IN CASE OF FIRE INSURANCE:

The maxim is liberally applied in fire insurance because on considering an fire event, there can

be a variety of causes. For eg. Loss by smock, by atmospheric pressure, by fire etc.

In Stanley v. Western Insurance Co.12 it was observed that any loss resulting from the fire and
resulting from the necessary and bona fide efforts to put out the fire whether by spoiling of goods
by water or throwing the articles out of window or pulling down a house for the purpose of
preventing the spreading of fire and flames is within the policy of fire insurance.

IN CASE OF MARINE INSURANCE:

The maxim is applicable to marine insurance but the application is very difficult due to the

different kinds of maritime perils. To make a marine insurer liable the insured must prove three

things namely,

i. That the loss is caused by the perils of the sea;

ii. That the peril is one that is insured against in the policy; and

iii. That the peril insured against is the proximate cause for the loss caused.

12 (1868) L.R. 3 Ex. 71

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In Dugdeon v. Pembroke13 a ship lying in her owner’s yard was insured under a time policy. It
was lost due to violent action of the winds and waves. It was in evidence that the sea was
unseaworthy at the time when it was sent to sea, but the owners didn’t know it. The insurer
argued that as the ship was unfit for the voyage they were not liable.

House of Lords applying the maxim causa proxima held that the immediate cause of the loss

was the violent action of the winds and waves and therefore the insurance co. was liable even

though the loss could not have happened but for the concurrent action of some other cause

namely the unseaworthiness of the ship.

In another case, Grer v. Poole,14 a policy was taken on goods on a French Ship. The ship was

injured by collision and the master, not having a sufficient funds for the necessary repairs gave a

bottomry bond on the ship, the freight not being sufficient to pay the bond, the assured had to

pay the deficit amount to get his goods.

The insurer was not held liable on the ground that the loss was not caused by perils of the

sea, but by want of funds on the part of the master.

In Powell v. Gudgeon,15 a ship was disabled due to the perils of the sea and went into a part for

repairs. The master of the ship sold away some of the goods to pay for the expenses of repairs.

The owners of the goods filed a suit against the insurer.

It was held that the insurance company was not liable as the proximate cause of the loss was

the act of the master selling away the goods and not the peril of the sea.

13 [1877] 2 AC 284 (HL)

14 (1880) 5 QBD 272
15 (1816) 5 M&S 431

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PRACTICAL APPLICATION OF THE DOCTRINE:

Properties are exposed to various perils like fire, earthquake, explosion, perils of sea, war, riot
and so on and every event is the effect event is the effect of some cause. The law however
refuses to enter into a subtle analysis or to carry back the investigation further than is necessary.
The doctrine of proximate cause, which is common to all branches of insurance, must be applied
with good sense so as to give effect to and not to defeat the intention.

There is no difficulty if a single peril acts and causes the loss but often these perils do not operate
in isolation, but acts in succession or simultaneously and will be difficult to assess the relative

effect of each peril or pick out one of these perils as the actual cause of loss.

Law says to look exclusively to the immediate and proximate cause, all causes preceding the

proximate cause being rejected as too remote. Nonetheless, it has been said that determining the

proximate cause of a loss is simply the application of common sense, and in many of the cases

that would appear to be so.

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CONCLUSIONS AND SUGGESTIONS:

Under any contract of insurance, the question of causa proxima (or proximate cause) of a loss
plays an important role. The doctrine of causa proxima is based on the principle of cause and
effect. Causa Proxima is a latin phrase which is based upon a maxim: “in jure non remota
causa, sed proxima spectator”. The maxim means in law the immediate and not the remote
cause is to be considered in measuring the damages. In contract of insurance, the insurer
indemnifies the insured only against the loss caused during the period insured; for which the
direct and proximate cause is the peril insured against.

In insurance law, it is very difficult to determine the exact reason for the loss caused so as to fix
the liability of the insurer. Sometimes, at outset it seems that the loss is caused due to the peril
insured against but while getting into the merits of the case it emerges that the loss is caused due
to some other reason. At this point of time court takes the help of the doctrine of proximate
cause. Doctrine of causa proxima is indeed a very important principle which governs the
insurance law. Courts have many a times interpreted this doctrine before fixing the liability of
the insurer. So it can be said that it is the backbone of insurance law.

There is no difficulty if a single peril acts and causes the loss but often these perils do operate in

isolation, but acts in succession or simultaneously and it will be difficult to assess the relative

effect of each peril or pick out one of these perils as actual cause of loss.

The doctrine is clear enough in theory but poses problems in practical application. The maxim is
applicable to Marine Insurance but the application is very difficult due to the different kinds of
maritime perils. The maxim causa proxima has a twofold operation that is partly to limit and
partly to enlarge the liability of the insurer, in marine insurance. As in respect of other insurance
contracts, courts only concerns itself with the particular risk which against which the insured has
taken the policy. But still in practicality it is not easy to determine the exact and the most
immediate cause for the loss and hence, this principle posses, at times, difficulty.

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SUGGESTIONS:

In the law of insurance the principle of causa proxima plays a vital role in determining the
liability of the insurer but determining the exact cause it is indeed a difficult task. Courts have
many a time laid down different rules for determining the proximate cause but no standard rule
till date has been formulated, this calls for legislative intervention. Any legislative reform in this
respect will easier the task of courts before fixing the liability of the insurer.

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BIBLIOGRAPHY:
1) Avtar Singh, LAW OF INSURANCE, Eastern Book Company, Second Edition, 2010.

2) Srinivasan MN, Principles of Insurance Law, 9th edn 2009, Lexis Nexis Butterworths
Wadhwa Nagpur
3) Murthy KSN & Sharma KVS, Modern Law of Insurance, 4th edn 2011, Lexis Nexix
Butterworths Wadhwa Nagpur.
4) Jaiswal J.V.N., Law of Insurance, Eastern Book Company, Lucknow 2011

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