The claimant contractor’s “all risks” policy covered damage to road construction works by heavy rainfall. The defendant insurer’s arguments were rejected, namely that the policy was not an “all risks” policy, the damage caused was inevitable and not fortuitous and the loss was caused by wilful misconduct of the insured, an exclusion under the policy.
Comment: this decision provides a salutary reminder to insurers that the courts will not help them to escape liability where they are satisfied that the cover in question is intended to be “all risks”. An “all risks” policy removes from the insured the need to demonstrate the precise cause of his loss, as long as it is fortuitous. The Court of Appeal in Tektrol Ltd v International Insurance Co of Hanover Ltd indicated the strict approach that will be taken to exclusions under “all risks” policies. They upheld Tektrol’s claim for business interruption loss resulting from the loss of a code required for the operation of its main product, an energy saving control device. The exclusion clauses relied upon by the insured could not properly be used to exclude liability for loss as a result of a virus or a burglary. An “all risks” policy should be presumed to cover all risks except when they are clearly and unambiguously excluded. Buxton LJ rammed the message home by concluding that it is open to insurers to make “things much clearer in their own favour if that was their intention when they drew the policy”.