Insurance Principles II
Cases Deliberate Acts
Tinline v Whitecross Insurance Association Ltd
(1921) 125 LT 632
BAILHACHE J
This policy indemnifies the assured against sums which he shalJ become legally liable to pay to any other person as compensation for accidental personal injury. It is to be borne in mind that a man does not become liable to pay compensation for accidental personal injury unless the accident is due to his negligence. Consequently the policy is one which obviously insures the assured against the consequences of negligence-not only the con sequences of negligence in general, but the consequences of his own negligence in particular. He is insured against the results of an accident caused by his own negligence. The defendants say that although that is perfectly true, yet where the negligence is so gross and excessive, and the result is that a person is killed and the crime of manslaughter is committed, the policy does not indemnify him against thecivilconsequences of that crime, because it isagainst public policy to indemnify a man against the civil consequences of his criminal act. Speaking generally, I think it is true to say that it is against public policy to indemnify a man against the consequences of a crime which he knowingly commits, and in the word ‘crime’ I include the breach of any statutory duty which renders a man liable to fine or imprisonment.
In motor accidents where the assured is the driver of the motor car, perhaps in ninety-nine cases out of a hundred the accident is due to the breach by the driver of some statutory duty. Many of these accidents are due to driving at excessive speed. That was the case here. Driving at a speed exceeding the speed limit is a breach of a statutory duty, and it isa breach of a statutory duty which subjects the offender to fine or imprisonment; and if the ordinary law were to be applied to these third-party indemnity cases, it seems to me that it would bea defence to say; it is true that you did not intend to commit the crime of manslaughter; it was an accident; but you committed the crime owing to, and as a consequence of, your breach of a statutory duty-namely, driving in excess of.the speed limit,or driving to the danger of the public, or on the wrong side of the road; and if the ordinary law were to be applied, it is difficult to see that that would not be an answer to any case under these third-party indemnity insurances.
But it is notorious that in point of fact and of experience that defence is never raised, and I do not think it has been very much thought of.
. . . I want it to be clearly understood that if this accident had been due to an intentional act on the part of the plaintiff, this policy could not possibly protect him, but then if a man driving a motor car at excessive speed intentionally runs into a man and kilJs him, the result is not manslaughter but murder, the reason being that manslaughter is the result of an accident and murder is not, and it is against accidents only that this policy insures….
James v British General Insurance Co Ltd
[1927] ALL ER Rep 442
ROCHE J
It remains to deal with the matter of public policy. That is a question of very great general importance because, if the contention of the present defendants is right, it seems to me that it cuts at the very roots of a very large number of these motor-car policies. ,1 myself see no half-way house whereby it can be said that the rule of public policy precludes from recovering under the policy only those persons who drive when they are drunk. It seems to me that the principle, if it is applicable at all, is applicable to all persons who drive to the public danger. Moreover, the principle affects many other forms of insurance. It affects a very large number of workmen’s compensation insurances where workmen are injured by acts or faults on the part of the employers-inadvertent no doubt-which amount to breaches of the Factory Acts-fencing of machinery and things of that sort. The results are very far-reaching if the mere fact that the assured has offended against the criminal law, however inadvertently, precludes him from recovering under a policy of insurance.
The act which brought about the criminal responsibility in Tinline’s Case1 and in this case and brought about the civil responsibility in both cases, was negligence. It may be that it was gross negligence, it may be that it was reckless negligence; whatever may be the degree of negligence which constitutes criminality, nevertheless it was negligence which was not the wilful or advertent doing of an act by which the plaintiff injured or killed the persons who were injured or killed.
In those circumstances, in my view, there is not on the part of the person who does an unlawful act that degree of criminality which makes it against public policy that he should be indemnified in respect of it. It may be possible to evolve a more general rule applicable to this case, but I content myself with saying that in a case of negligence I am not prepared to hold that there is the wilful, intentional criminality which makes it contrary to public policy to allow such a person to be indemnified. With regard to the distinction between this case and Tinline’s Case based on the ground of drunkenness, it is said that the drunkenness involved a degree of deliberation or intention which was not present in Tinline’s Case, and at one time the argument almost seemed to touch on the degree of moral culpability attaching to the two cases, but in reality it was directed to more legal considerations. With regard to culpability-while I must not be thought to be defending or excusing the conduct of the plaintiff or of any person in his situation-I find it difficult to think that he was any worse than other persons who with deliberation and in their sober senses, drive with reckless disregard of the life and limb of other people. With regard to the legal position it appears to me that they are both in the same position; they are both guilty, ex hypothesi, of criminal negligence for which they are answerable in a criminal court, whether for doing actual bodily harm or for manslaughter. In neither case have they in fact intended the injury to life and limb for which they are tried and convicted. They have been guilty of negligence which is inadvertent and not advertent, or wilful, or intentional, so as to inflict bodily harm.
For these reasons I hold that this case is not distinguishable from Tinline’s Case. I have also thought fit to express my opinion
that Bailhache J’s, decision was right in principle.
Gray v Barr, Prudential Assurance Co Ltd
[1971] 2 All ER 949
SALMON LJ
It is well settled that if a man commits murder or committed felo de se in the days when suicide was still a crime, neither he nor his personal representatives could be entitled to reap any financial benefit from such an act: Re Crippen’s Estate’ and Beresfordv Royal Insurance Co Ltd.9 This was because the law recognised that, in the public interest, such acts should be deterred and moreover that it would shock the public conscience if a man could use the Courts to enforce a money claim either under a contract or
a will by reason of his having committed such acts.
Crimes of violence, particularly when committed with loaded guns, areamongst the worst curses of this age. It is very much in \ the public interest that they should be deterred. A man, covered . bya hearth and home policy such as the present, walks into a bank witha loaded gun. He intends only to frighten and not to shoot the cashier. He slips and accidentally shoots a customer standing by
the counter. It would be strange indeed if he could enforce the policy in respect of his liability to that customer. Once you threaten violence with a loaded gun and it goes off it is so easy to pleadaccident. Evidently it is very difficult for the prosecution to prove the contrary. Although public policy is rightly regarded as an unruly steed which should be cautiously ridden, I am confident that public policy undoubtedly requires that no one who threatens unlawful violence with a loaded gun should be allowed to enforcea claim for indemnity against any liability he may incur as a result of having so acted. I do not intend to lay down any wider proposition. Inparticular, I am not deciding that a man who has committed manslaughter would, in any circumstances, be prevented from enforcing a contract of indemnity in respect of any liability he may have incurred for causing death or from inheriting undera will or on the intestacy of anyone whom he has killed. Manslaughter isa crime which varies infinitely in its seriousness. It may come very near to murder or amount to little more than inadvertence, although in the latter class of case the jury only rarely convicts. Re Hall’s Estates, Hall v Knight and Ba.xter10 may seem to be an authority for the proposition that anyone who has committed manslaughter, in any circumstances, is necessarily under the same disability as if he had committed murder. The facts, however, are not stated in the report and they are of vital importance in order to understand the decision. They have now been ascertained from the record. A man named Julian Hall kept a woman named Jeannie Baxter and had made a will in her favour. They had had many quarrels. He had promised to marry her but had not done so. On 13 April 1913 she took his revolver and whilst he was in bed, shot him dead with four or five shots. She was acquitted of murder but convicted of manslaughter. It is small wonder that the Court held that, on grounds of public policy, she could not take under Hall’s will. The only surprising thing about the case is that she was acquitted of murder, apparently for no reason, except, perhaps, that she was defended by Mr Marshall Hall.
The cases of Tinline11 and James,12 in which it was held that persons convicted of manslaughter for reckless and drunken driving could nevertheless recover indemnity from their insurers, were doubted in Hase/dine v Hosken13 but a proved by this Court in Maries v Philip Trant & Sons Ltd (No 2). 4 It seems now to be settled law that a motorist can rely on his policy of insurance to indemnify him in respect of his liability for any injuries which he has caused otherwise than on purpose: Hardy v Motor Insurers’ Bureau.15 These road traffic cases may be sui generis. In any event, although motor cars have sometimes been caJJed lethal weapons, these cases are not in my view akin to the cases in which injuries are caused in the course of unlawfully threatening a man with a loaded gun. Public policy is not static. Even if the crime of suicide had not been abolished by statute, it may be that today Beresford’s Case16 would have been differently decided. In any event, threatening violence with a loaded gun would, I am sure, now be generally regarded as much more shocking and necessary to be deterred than what the unfortunate Major Rowlandson did in Beresford’s Case. I am confident that in any civilised society, public policy requires that anyone who inflicts injuries in the course of such an act shall not be allowed to use the courts of justice for the purpose of enforcing any contract of indemnity in respect of his liability in damages for causing injury by accident.
Lombard Australia Ltd v NRMA Insurance Ltd
[1969] 1 Lloyd’s Rep 575
WALLACE A-CJ
Where the promise by the insurer to the two assured (they not being joint owners) is a several promise in respect of their respective interests in a motor car, deliberate action of the hirer in causing damage to the vehicle cannot prejudice theowner’s claim that his or its loss derived from accidental causes. The word ‘accidental’ like so many other words has different meanings according to its particular context, but here the question whether the loss was accidental can only be decided from an examination of the conduct and activities of the claimant for indemnity because the indemnity was a several one. On this basis the claim of the owner in the present case was unanswerable. We were taken toa number of cases, but I find it unnecessary to refer to them.
In the result the insurer’s argument here that the deliberate act of the hirer is a defence to the claim by the owner fails.
Geismarv Sun Alliance and London Insurance Ltd
[1977] 3 All ER 570
TALBOT J
Applying these cases to the present problem it would seem thata contract of insurance, which is separate and apart from the illegal act, is not rendered unenforceable, but if the contract of insurance purports to cover property which the law forbids him to have, then the contract is directly connected with the illegal act and is unenforceable. In the present case it is argued that the plaintiffs contract of insurance is quite apart from and does not in any way spring from his illegal act of importation of some of the articles insured under the policy. Moreover, the law of this country does not forbid possession of property brought i from foreign countries. What it requires is that the importer shall pay for its importation. The fact that property is liable to confiscation under the relevant Act does not negative the plaintiffs right of property in it until the act of confiscation is carried out. I start with the fact that the contracts of insurance are separate from the illegal importation. Next, there is no contractual point taken here and there has been no repudiation of the contracts by the defendants. It is clear that the plaintiff has an insurable interest in the property, though subject to defeasance. It is also clear that to allow the plaintiff to recover under the policies would be to allow him to recover the insured valueof the goods which might have been confiscated at any moment and which, therefore, were potentially without value to him.
So far as the defendants were concerned, they being unaware of the illegal importation, the policies were not tainted with illegality, but the question is: ought the court to enforce these policies against them in favour of the plaintiff?
It seems to me that from what Lord Denning MR said in Mackender v Feldia AG17, the policies would be unenforceable, provided that to enforce them would conflict with public policy. So these smuggled articles are in the same category as the forbidden cargo in Parkin v Dick18• No new area of public policy is involved here. The plaintiff is seeking the assistance of the court to enforce contracts of insurance so that he may be indemnified against loss of articles which he deliberately and intentionally imported into this country in breach of the Customs and Excise Act 1952.
I am not concerned with cases of unintentional importation or of innocent possession of uncustomed goods. I would think that different considerations would apply in those cases. But where there is a deliberate breach of the law I do not think the Court ought to assist the plaintiff to derive a profit from it, even though it is sought indirectly through an indemnity under an insurance policy.