In Amlin Corporate Member v (1) Baby Basics (2) Vital Innovations (2017), the court considered the extent of cover provided in respect of “bodily injury” under a product and public liability policy and whether an insured had complied with notification requirements.
The insured, first defendant, was a manufacturer and supplier of baby products, including spoons. The second defendant sold these baby products in Israel and provided the spoons to a local retailer. In September 2015 the Israeli authorities decided that the spoons did not meet Israeli safety standards and in January 2016 a notice to recall the spoons within Israel was issued. Following this, both the second defendant and the retailer to whom it had supplied the products were the subject of two class actions. The claimants in these actions sought damages for “negative feelings”.
The product and public liability insurance underwritten by the claimant insurer did provide cover for “bodily injury”. However, the claimant insurer sought a declaration from the court (which was not defended) that it was not liable to indemnify the defendants in respect of the claims because the claims were not for “accidental bodily injury” or “accidental damage to property”. Further, the insured had not complied with the notification condition, which provided that notification of a claim should be made as soon as reasonably practicable after an incident that might give rise to a claim, and full information in writing should be provided within 30 days. Notice had not been given to the insurer until April 2016, two months after the class actions and nearly three months after the product recall.
Sir Jeremy Cooke held that there was an unanswerable case that the policy condition on notification had been breached. Accordingly, there was no cover. In addition, the policy did not provide cover in respect of “negative feelings”. While “nervous shock” would fall within “bodily injury”, that required a serious mental disturbance resulting in a recognisable psychiatric disease, and not negative feelings, anxiety or fear.