Coxe v Employers' Liability Assurance Corporation, Limited
[1916] 2 KB 629(Judgment by: Scrutton)
Coxe
v.Employers' Liability Assurance Corporation, Limited
Judge:
Scrutton
Judgment date: 13 July 1916
London
Judgment by:
Scrutton
By a policy of insurance the deceased, a military officer, was insured with the defendants against death caused accidentally within the United Kingdom by violence due to any external and visible means. The policy was subject to the condition that it did not insure against death "directly or indirectly caused by, arising from, or traceable to .... war." The realm being in a state of war, it became necessary to protect the South Eastern Railway, and whilst the deceased, in the course of his military duty, was walking alongside the rails of the railway for the purpose of visiting guards and sentries posted at various points along the line, he was accidentally killed by a train. The general public had no right to walk along the line at the place where the accident happened, and in normal times the place would have been illuminated by lights from an adjacent signal-box, but those lights had been obscured in compliance with regulations made under the Defence of the Realm Act, 1914 . An arbitrator having found that the death of the deceased was traceable to war within the meaning of the condition:—
Held, that the finding of the arbitrator must be confirmed, inasmuch as the words "directly or indirectly" could not be reconciled with the maxim causa proxima non remota spectatur, which would have been applicable had the words not been in the condition; and that, the deceased having been placed in a position 630of special danger by reason of his military duties consequent upon the war, it was open to the arbitrator to find as a fact that the death was indirectly caused by war.
AWARD made by an arbitrator in the form of a special case.
An action was brought by the plaintiff as executor of one Captain Ewing, deceased, against the defendant corporation to recover the sum of 1000l. under a policy of insurance dated October 12, 1905, and all matters in difference in the action were by order referred to the arbitrator.
By the policy Captain Ewing was insured with the defendants against death caused accidentally within the United Kingdom by violence due to any external and visible means in the sum of 1000l., with the benefit of certain accumulative bonuses. The policy was subject to certain conditions indorsed upon it, amongst which was the following: "This policy does not insure against death or disablement, directly or indirectly caused by, arising from, or traceable to any of the following, viz.: Self injury or suicide, intoxicating liquors, war, invasion or civil commotion." The defendants admitted that if the plaintiff was entitled to recover on the policy he would be entitled to a total sum of 1450l. by reason of certain accrued bonuses.
The dispute between the parties was whether the death of Captain Ewing in the circumstances hereinafter set out was "directly or indirectly caused by, arising from, or traceable to .... war" within the true construction of the condition.
Captain Ewing was an officer in the Reserve of Officers, and on September 30, 1914, after the outbreak of war, received a commission as captain in His Majesty's Territorial Forces, from October 3, 1914. In consequence of the realm being in a state of war it became necessary to protect the South Eastern Railway in and about Folkestone Junction by means of guards and sentries posted at various places along the line, and the duty of protection was assigned by the military authorities to Captain Ewing and the company of Territorials under his command. The guards and sentries were visited by their officers at night, and usually by a subaltern, but it was the duty of the deceased as commanding officer of the company to visit them personally from time to time, and it was his practice to do so, and for the purpose of doing so it was necessary in the 631ordinary course to walk alongside the rails of the railway. On the night of May 17, 1915, Captain Ewing walked alongside the rails of the railway in the course of his military duties as commanding officer for the purpose of visiting the guards and sentries, and whilst so walking he was accidentally knocked down by an engine or train and killed. The general public had no right to walk along or by the line at the spot where the accident occurred. In normal times the spot and its vicinity were illuminated to some extent by the lights from an adjacent signal-box, but at the time of the accident the lights were obscured in compliance with regulations made under the Defence of the Realm Act, 1914 .
At the hearing before the arbitrator the main contention for the plaintiff was that the exception of "war" in the condition should be limited to cases of actual warfare acting physically in some way on the person of the assured to his detriment or injury and that the words "directly or indirectly" did not apply to the words "arising out of or traceable to."
The defendants relied on the condition, which they maintained was not so limited.
Subject to the opinion of the Court the arbitrator held, and in so far as it was a question of fact he found, that the death of the deceased was traceable to war, and awarded that the plaintiff was not entitled to recover anything from the defendants.
Ernest Pollock, K.C., and Raeburn, for the plaintiff. The finding of the arbitrator was wrong. This case does not come within the exception clause in the policy. In that clause "war" means something in the nature of active hostilities in the course of which injury is caused to the assured. This injury was not directly or indirectly caused by and did not arise from and was not traceable to the state of war. This accident might equally have happened if there had been a mobilization only and no actual war. The causa proxima must alone be considered, and the war cannot be said to be the causa proxima in this case: Ionides v. Universal Marine Insurance Co.[1]; Lawrence v. Accidental Insurance Co.[2]; Wicks v. Dowell & Co.[3]
Gordon Hewart, K.C., and C. Doughty, for the defendants. If Captain Ewing had been visiting sentries in France there could have been no doubt that he would have met his death through the war. It is just as necessary from military considerations that portions of railways in England should be watched as in France. There were ample materials upon which the arbitrator could find that the deceased's death was traceable to war. It is a question of fact in each case whether an event can reasonably be said to be traceable to war. The deceased's military duties took him upon the railway, and although being there was not the cause causans, it was the conditio sine qua non. [Andrew v. Failsworth Industrial Society[4] was referred to.]
Ernest Pollock, K.C., in reply. The maxim causa proxima non remota spectatur pervades the whole of insurance law. Difficulties at once arise if that maxim is departed from.
[SCRUTTON J. May not the words "directly or indirectly" have the effect of excluding the maxim?]
There is no authority as to the effect of those words, but they are not sufficient to set aside a maxim which forms the basis of insurance law. The words "or indirectly" do not apply to the facts of this case and are dormant. The deceased's military duties did not cause his death. It was the fact that the engine happened to come along at the moment it did that caused death: Ionides v. Universal Marine Insurance Co.[5]; Lawrence v. Accidental Insurance Co.[6]; Wicks v. Dowell[7]; Macgillivray on Insurance, p. 953. The deceased was insured against accident, and a meaning ought not to be given to the exception so wide as to avoid the main contract. A reasonable meaning must be given to the exception.
SCRUTTON J., having stated the facts, continued: The defendants contend that, although the death was "caused accidentally .... by violence due to .... external and visible means," it was "indirectly caused by, arising from, or traceable to .... war," because war required the assured to be in this place where, by reason of the regulations made under the Defence of the Realm Act, 1914 , in consequence of the war, he was exposed to a special 633danger. The arbitrator, after finding the facts, continues: "Subject to the opinion of the Court I hold, and in so far as it is a question of fact I find, that the death of the deceased was traceable to war." If he has adopted the true construction of the policy in law, in my judgment the question whether the death was traceable to war is one of fact, and I have no power to interfere with the finding of the arbitrator upon it. I could only interfere if no arbitrator could, on the true construction of the policy, properly come to that conclusion of fact.
The construction of this condition is not very easy, and it is clear that several questions might arise upon it; but, dealing with the particular matter which is before me, namely, whether I ought to uphold the finding of the arbitrator that the death of the deceased was indirectly traceable to war, I start with the consideration that to all policies of insurance, whether marine or accident, the maxim causa proxima non remota spectatur is to be applied if possible. The immediate cause must be looked at, and not one or more of the variety of causes which if traced without limit might be said to go back to the birth of the assured. For that reason, when there are words which at first sight go a little further they are still construed in accordance with that universal maxim. Thus it has been held upon the words "from all consequences of hostilities" that the proximate and direct consequences of hostilities are alone to be looked at: Ionides v. Universal Marine Insurance Co.[8] Where the words were "damage consequent on collision" it was decided that only the immediate and necessary consequences of the collision were to be looked at, and not what happened at the port of refuge in consequence of the collision: Pink v. Fleming.[9] In Lawrence v. Accidental Insurance Co.[10], where the assured was killed by a train and was on the line because, just previous to the train passing, he had had a fit, and there was an exception that the policy did not insure in case of death arising from fits or any disease whatsoever arising before or at the time or following such accidental injury, the immediate cause was again looked at, and it was held that the assured's representatives could recover although a fit placed him on the line where the railway engine 634killed him. I have therefore to ascertain whether the language of this policy goes beyond and excludes the maxim.
The words in the condition "caused by" and "arising from" do not give rise to any difficulty. They are words which always have been construed as relating to the proximate cause. I am not sure whether the words "traceable to" would of themselves necessarily go any further. They are very vague words, and I should have been disposed to hold, if those were the only words, that, if the defendants choose to employ very vague words of that kind, the words must be read strictly against them and in accordance with the ordinary maxim. But the words which I find it impossible to escape from are "directly or indirectly." There does not appear to be any authority in which those words have been considered, and I find it impossible to reconcile them with the maxim causa proxima non remota spectatur. If it were contended that the result of the words is that the proximate cause, whether direct or indirect, is to be looked at, I should reply that that result does not appear to me to be consistent or intelligible. I am unable to understand what is an indirect proximate cause, and in my judgment the only possible effect which can be given to those words is that the maxim causa proxima non remota spectatur is excluded and that a more remote link in the chain of causation is contemplated than the proximate and immediate cause.
But a line must be drawn somewhere. For instance, the birth of Captain Ewing, even though it may be said to have led in the chain of causation to his being in the position in which he was killed, could not be considered as causing his death; and if on the facts it was possible to hold, in accordance with the principles I have enunciated, that the clause was not applicable, I should have been able to find that his representatives had a claim. But I am unable to hold that any principle excludes, upon these facts, a possible finding by the arbitrator that war was the indirect cause of this accident. If war had merely placed Captain Ewing in a position not specially exposed to any danger, and in that position a particular incident not connected with war caused his death, I think that most probably in that case the matter would not come within the condition. For instance, suppose that, in connection with the war, the assured had gone to a military camp not in any way specially 635exposed to lightning, but where lightning had struck and killed him, I should be disposed to think that the war was so remote from the death that in that case it could not be said that the death was indirectly caused by the war. If, however, the war had placed the assured in a position specially exposed to danger, as for instance in a place where he was specially exposed to being struck by lightning — if such a place can be conceived — and he was there struck and killed by lightning, it appears to me to be a question of fact, not of construction, whether the death was indirectly caused by war.
In the present case the arbitrator has found, as a fact, that the assured's death was indirectly traceable to war; and it is clear upon the facts that he was placed in a position of special danger — namely, he had to be about the railway line performing his military duties at night with the lights turned down, in consequence of war, and while doing his military duties in that position of special danger he was killed by reason of the special danger which prevails at that particular place and to which he was exposed by reason of his military duties. In those circumstances I am unable to hold that the arbitrator could not reasonably find, as a matter of fact, that the death was indirectly caused by war. In my judgment it was a matter for him to find, and not for me. I could only interfere with his finding if upon the facts he could not upon the true construction of the condition come to the conclusion at which he arrived. I must therefore find in favour of the defendants.
Award upheld.