Whether insurer liable for acts of a schizophrenic insured

http://www.bailii.org/ew/cases/EWCA/Civ/2015/673.html                                                              The claimant was injured when the defendant, his uncle, set fire to himself, engulfing them both in flames. The uncle died of his injuries and was diagnosed post-mortem as having suffered florid paranoid schizophrenia.

The uncle had a household insurance policy which provided cover for "all sums which you become legally liable to pay as damages for…accidental bodily injury…to any person". The insurer argued that the uncle's actions were deliberate and so did not cause "accidental bodily injury"; instead, they fell within the exclusion for "Liability arising from … any wilful or malicious acts by you".

The experts confirmed that, at the time of the incident, the uncle had been acting under delusional beliefs and agreed that he was not in control of his actions. At first instance, the judge concluded that the uncle had not been acting voluntarily and so did not breach a duty of care to the claimant. Accordingly, he was not liable to the claimant (although the judge also concluded that the injury had been "accidental" and so any liability would have been covered by the policy).

The Court of Appeal has now allowed the claimant's appeal from that decision and held that the uncle was liable to the Claimant.

It was held that the uncle owed a duty of care and: "The issue is simply whether, unwell as he was, he breached that duty since he did not measure up to the objective standard of care". Although the objective standard is moderated for children, there is no such moderation for a defendant who fails to meet the normal standard of care partly because of a medical problem. The only exception is where the defendant's condition entirely eliminates responsibility: "If, akin to the man holding a knife whose arm was gripped by another and directed, [the uncle] had no part to play in his physical acts, he would escape liability... Likewise, had he been in a state of automatism or were he a sleepwalker". Put another way, were the claimant's injuries sustained because the defendant suffers "some entirely unheralded, unexpected and unforeseen incapacitating attack" (due to a physical or mental health problem)? If so, the defendant would not be liable.

But that was not the position here. The uncle had been "acting at all relevant times" and the acts causing the injuries had still been directed by the uncle's deranged mind. He had physical (although not rational) control over his actions.

As for the insurance policy, both Vos LJ and Arden LJ agreed that the injury had been "accidental", the uncle having clearly lost control of his ability to make choices and so could not be said to have intended to cause injury to the claimant (ie he was not malicious or wilful). They agreed with the claimant that: "it would be unrealistic to interpret accidental injury or damage in the policy as limited to that caused by some means external to the insured: that would reduce the cover to significantly less than the parties must have contemplated".

COMMENT: In Mandalia v Beaufort Dedicated (see Weekly Update 46/14) the judge held that maliciousness in a property policy required a desire to harm someone, whereas a High Court decision in the same month (Atlasnavios-Navegacao v Navigators), involving a war risks policy, had cited with approval Colman J's decision in "The Grecia Express" (2002) (another war risks policy case) that maliciousness "did not require proof that the person concerned had the purpose of injuring [the assured]". The Court of Appeal in this case has found that maliciousness in a liability policy required an intent to cause injury (which in this case was not satisfied because the uncle had "clearly lost control of his ability to make choices" and so there was no actual intent).

The Court of Appeal's brief consideration of the meaning of "accidental" (ie that the injury here was accidental because the insured had not intended to injure the claimant) is also of interest. One textbook has suggested that a loss may by accidental even if the insured did not make a subjective decision to run the risk of harm: "It suffices that he embarked on a deliberate course of conduct where the occurrence of injury or loss was, objectively viewed, a natural and probable consequence of his actions" (see MacGillivray on Insurance Law, 12th edn para 26-003).