Patrick (A Child) v Royal London Mutual Insurance Society Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE TUCKEY,LORD JUSTICE THOMAS,LADY JUSTICE HALLETT |
| Judgment Date | 30 March 2006 |
| Neutral Citation | [2006] EWCA Civ 421 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | A2/2005/1513 |
| Date | 30 March 2006 |
[2006] EWCA Civ 421
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH
(HIS HONOUR JUDGE SEYMOUR)
Royal Courts of Justice
Strand
London, WC2
Lord Justice Tuckey
Lord Justice Thomas
Lady Justice Hallett
A2/2005/1513
DR D JESS (instructed by Messrs Keoghs, 2 The Parklands, Bolton, BL6 4SE) appeared on behalf of the Appellant
MR P IRVIN (instructed by Messrs Cooper Sons Hartley and Williams, 9 Terrace Road, Buxton, SK17 6DU) appeared on behalf of the Respondent
What does the word "wilful" mean in an insurance policy which excludes cover for "claims and liabilities arising from any wilful, malicious or criminal acts"? This question arises on an appeal from HHJ Seymour QC sitting as a judge of the High Court who held that it meant damage deliberately caused and consciously intended and therefore did not exclude cover for a claim for damage caused by a fire started by an 11 year old boy.
In 1997 Waterside Mill, Hadfield in Derbyshire was partly derelict and partly used for commercial purposes including a re-packaging unit. The claimant, Ronson, alleges that it had nearly £850,000 worth of its stock in this unit when it was destroyed by fire on 27 May 1997. A fire was started that day in a derelict part of the mill by the then 11 year old Part 20 claimant, Christopher Patrick, and his friend John. The trial of the insurance question raised in the Part 20 proceedings took place before HHJ Seymour. Christopher was not required to give evidence, but the judge answered the question (as I do) on the basis of a statement made by Christopher which said:
We decided that we were going to build a den in the corner of the mill. We did this by placing pallets up against the wall and putting a pallet on top. We sat inside the den smoking for a short time and talking. At no time whilst we were in the den did we discuss burning down the mill.
We came out of the den and set fire to the paper that was inside the den with a view to setting fire to the den itself. At no time did I think that this fire would lead to the whole mill being burnt down.
I did not think that anybody would mind us setting fire to the paper and pallets as I thought that they were just rubbish that had been abandoned. It took us approximately half an hour to build the den. Whilst the den was still burning we decided to leave. When we had left I shinned up a lamp-post to have a look at what the fire was doing. By that time it was smaller and most of the flames had died down.
Ronson claimed that it was this fire which destroyed their stock. There is an issue about this because the police attending the scene found traces of other fires at the mill. For present purposes however we are only concerned with whether the policy covers Ronson's claim.
The policy is a standard householders contents policy with extensions (as such policies usually have) for among other things "household and personal liabilities". This extension as relevant provides that:
All persons insured are covered for legal liabilities arising … in a personal capacity from incidents occurring in the British Isles … during the currency of this policy resulting in: …
(b) accidental damage to property neither belonging to nor in the custody or control of those insured under this section.
"EXCLUDING claims and liabilities arising from:
…
"(viii) any wilful, malicious or criminal acts.
Claims and liabilities arising from agreements, dangerous dogs, ownership of land, business, HIV and the use of vehicles or horses were also excluded.
The policy was issued to Christopher's mother by United Friendly, whose liabilities have been transferred to the Part 20 defendant, Royal London Mutual Insurance Society Limited. She and her immediate family which included her children were "persons insured" under this policy.
Ronson's claim has been subrogated to its insurers. Very properly they have made it clear that they do not seek to recover any money from Christopher (or his mother) but only Royal London if he is insured. Royal London have very properly undertaken to meet his costs of defending the proceedings whatever their outcome. So the point at issue is being contested by insurers on either side and is said to be of importance to Royal London and possibly others in the industry.
Relying on what Bowen LJ said about the meaning of the word "wilful" in In re Young and Harston's Contract [1885] 80 Ch D 168 at 174, 175 the judge said that a person acted wilfully if he intended to produce the consequences in fact produced by his conscious act. This reflected one of the primary meanings of the word, namely, "determined to have one's own way, notwithstanding advice or common sense". Simply to construe the word as "deliberate" would deprive the liability extension of this policy of much, if not all, of its value.
The judge continued:
23. … It is difficult to conceive of circumstances in which an insured might be liable in respect of personal injury or damage to property, and thus have need of the cover for which [the extension] provided without having...
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