England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT, QBD, COMMERCIAL COURT
Mr Justice Knowles
2014-347

		Royal Courts of Justice Strand, London, WC2A 2LL
		12/01/2017

Lord Justice Christopher Clarke:

1. The question in this appeal is whether Knowles J was right to find that Zurich Insurance PLC ("Zurich"), the appellant, was not entitled to rely upon a clause in an insurance policy in order to decline to indemnify Maccaferri Limited ("Maccaferri"), the respondent, in respect of its liability to contribute to the damages payable to Mr Justin McKenna ("Mr McKenna"), who had already lost the sight of his left eye, in respect of a severe injury to his right eye. As a result, he was rendered nearly blind.

The companies and persons involved

2. Maccaferri's principal business is the construction of retaining walls and soil reinforcement and erosion protection. It also supplies Spenax guns to the UK construction industry. Spenax guns are manufactured in the USA by Stanley Spenax. Although called guns they are in fact pneumatic lacing tools. They are used to tie together the sides of steel wire mesh cages which are known as gabions. In effect the "gun" is a giant stapler. We were shown, as was the judge, the actual gun. An image of a similar gun appears below:

3. The gun contains a magazine which contains C shaped clips. These are pressed into the jaws of the gun by a feeder blade. The jaw is placed around the steel wires which are to be clipped together. When the trigger is pulled the c-clip is fastened round the steel wires. The c-clip is compressed by helical grooves in the jaws so as to become closed to a circle. The force necessary to do so is derived from the compressed air line which is linked to the gun. After the trigger is pulled the feeder plate recedes; another c-clip comes into place from the magazine which is then pressed into the jaws. When the trigger is pulled a new c-clip is fastened. It is possible for a c-clip to jam in the machine, and, in certain circumstances, to be ejected from the jaw.
4. Maccaferri engaged a third party – CAT Industrial, the name for the business of a Mr Chris Clougher – to store, maintain and repair the guns. Maccaferri hired their guns out to builders' merchants who hired them out in turn to building contractors. In the present case Maccaferri hired out the gun to Jewson Limited ("Jewson") which, in turn hired it out to Drayton Construction Limited ("Drayton"), an earthmoving and landscaping company. Jewson placed an order for the gun on 13 September 2011, for delivery to Drayton, and the gun, serial number 3291, was delivered to Drayton the next day.
5. On 22 September 2011 Mr McKenna, an employee of Drayton, had been operating a digger. The gun had been left on the ground in the way of the digger by another employee, Mr Dixon. Mr McKenna picked it up to move it out of the way and was, by his account, struck by a c-clip fired from the gun. I say "by his account" because the experts engaged for the subsequent civil proceedings found it difficult to replicate circumstances under which the gun would eject a c-clip, unless they placed a c-clip into the jaw at an angle i.e. so that the C was not aligned with the grooves in the jaws. They were not able to replicate a circumstance in which the c-clip jammed in the gun (as Mr Dixon said had happened before the accident) and was then ejected after it had done so. However there had been instances in the past when a c-clip had been ejected. The phenomenon of "rings spitting" is noted in servicing invoices from CAT Industrial to Maccaferri and Mr Clougher had experienced "stings" from discharged clips. It is agreed that the c-clip could not have been ejected without the trigger on the gun being pulled.
6. The accident does not appear in Drayton's accident book until 27 September 2011. The entry recorded that the gun "went off when he put it down shooting a Clip from the tool into his face and eye". On 28 September 2011 Mr Abbey, Maccaferri's Sales Coordinator, who was the only witness to give oral evidence at the trial, was notified by telephone of an incident involving the Spenax Gun by someone from Drayton who wanted the gun to be taken off hire and by Mr Martyn Webb at Jewson who said that he had been told by someone at Drayton that there had been an accident, that the gun had to be taken off hire and that the gun had to be kept for investigation. Mr Abbey's evidence was that he was not given any details of the incident at this stage or told that there had been any kind of serious personal injury, let alone one caused by the gun, about which no complaint was then made. He stopped the weekly hire charges. He said that within a few weeks Mr Webb must have confirmed that there had been an accident involving the gun. On 24 October 2011 someone at Maccaferri agreed to provide test certificates on the gun to Jewson.
7. It is clear, however, that by 12 January 2012 Maccaferri knew that someone had been injured since Jewson's Charter Manager document records on that date that Maccaferri had rung the branch the previous week "to see if we knew how the injured party was doing – neither branch nor Maccaferri have heard anything at all regarding the incident". It also records that "Maccaferri had asked Martyn to follow up on the injured party with Drayton". At this stage Maccaferri's concern was that Drayton was retaining the gun without paying for it and Mr Abbey began to question why the gun was still being held and whether there was in fact any testing going on. Maccaferri contacted Jewson threatening to apply hire charges and asking for any HSE reports. The latter would prove whether any investigation was in fact going on.
8. On 12 June 2012 Jewson sent Maccaferri email correspondence with Drayton which revealed that Drayton's solicitors still needed the gun for forensic testing and that the solicitors were dealing with a claim in relation to an accident on site in 2011.
9. Mr Abbey's evidence was that sometime in June he was in a public house in Abingdon and overheard, but was not party to, a conversation about a person who worked for Drayton who had lost an eye in an accident at work using some sort of equipment. At the time, he thought that perhaps this was the same accident as the one of which he was aware, which had involved the retention of the gun, although he had not heard what that accident had involved. He reported the conversation to his superior. The two of them wondered whether this had anything to do with the gun but did not consider that the accident might have had something to do with a faulty gun. Nor did they discuss the possibility of the gun being the cause of the accident. It did not cross their minds that the accident might have happened as a result of some fault of the gun, which was regularly serviced and maintained before it was sent out.
10. Mr Abbey's evidence was that by this time he knew that Mr McKenna was going to make a claim but he did not think that it would be directed at Maccaferri because there was nothing wrong with the gun.

Civil proceedings

11. In or around July/August 2012 Mr McKenna began proceedings against Drayton claiming damages. The Particulars of Claim are dated 19 July 2012. On 18 February 2013 judgment was entered by consent against Drayton for damages to be assessed.
12. On or about 29 March 2013 Drayton issued proceedings against Jewson claiming an indemnity or contribution, or damages for breach of contract, in respect of its liability arising out of Mr McKenna's claim. On 12 July 2013 Jewson joined Maccaferri as a Part 20 defendant. On 18 July 2013 Jewson's solicitors wrote to Maccaferri telling them that Jewson had issued Part 20 proceedings against Maccaferri. That letter was received on 22 July 2013 on which date Maccaferri notified its brokers of the claim and the brokers notified Zurich. Mr Abbey's evidence was that before then he had not suspected or had reason to believe that a claim would be brought against Maccaferri. By a letter of 25 September 2013 Zurich refused to indemnify Maccaferri under the Policy.
13. On 30 September 2013, a settlement was reached by which Mr McKenna would receive £ 1.4 million and £ 292,000 by way of costs. On 17 March 2015, an order was made by consent that all further proceedings between Drayton, Jewson and Maccaferri be stayed on the basis that Jewson and Maccaferri between them would pay Drayton £ 350,000 (i.e. 25% of £ 1,400,000). It was agreed that Maccaferri would pay £ 233,333 (i.e. 2/3^rd) of this sum.

The policy

14. The policy in question was a combined Public and Products Liability policy. Under it Zurich agreed to indemnify Maccaferri during the policy period in respect of all sums which Maccaferri might become legally liable to pay as compensation for, inter alia, "accidental death of or accidental personal injury to any person other than an employee where such death or personal injury arises out of and in the course of the employment … occurring during the currency of [the] policy within the territorial limits in connection with the business of the Insured". The policy period was from 31 May 2011 to 31 May 2012.
15. Clause 1 of the Conditions of the policy provided that the due observance of the conditions by the insured insofar as they related to anything to be done and complied with by the insured was to be a condition precedent to any liability of the insurer to make payment under the policy. Clause 2 of the Conditions provided:

"The Insured shall give notice in writing to the Insurer as soon as possible after the occurrence of any event likely to give rise to a claim with full particulars thereof. The Insured shall also on receiving verbal or written notice of any claim intimate or send same or a copy thereof immediately to the Insurer and shall give all necessary information and assistance to enable the Insurer to deal with, settle or resist any claim as the Insurer may think fit. …".

[Bold added]

16. Certain matters are common ground. First, in order for the condition to apply there must be an event i.e. something happening at a particular time, in a particular place and in a particular way: Axa Reinsurance (UK) Plc v Field [1996] 1 WLR 1026 at 1035. Second, "an event likely to give rise to a claim" means an event with at least a fifty per cent chance that a claim against the Claimant would eventuate: see Layher Ltd v Lowe [2000] Lloyd's IR 510 at 512 1^st col. and Jacobs v Coster (t/a Newington Commercials Service Station) and Avon Insurance (Third Party) [2000] Lloyd's Rep IR 506 at [12] and [14]).
17. An event may occur which gives rise to a claim which is brought against the insured well over a year or more later. The insured may know of the event at the time it occurs or in the immediate aftermath and that it is likely to give rise to a claim against him. If so, he must give notice to the insurer. But he may not know of the event, or the details of the event, until some considerable time after the event occurred; and when he knows about it, or something about it, he may or may not appreciate that it is likely to give rise to a claim against him. What then is his obligation under the clause? Mr Robert Moxon-Browne QC for Zurich submitted to the judge, as he did to us, that the meaning of the words used in condition 2 is that, when the insured learns of the event and realises that it is likely to give rise to a claim he must, then, give notice to the insurer, even if this is well after the event occurred. He must also do so as soon as he could with reasonable diligence have discovered that an event which was likely to give rise to a claim had occurred. The judge rejected this submission.

The authorities

Layher

18. In Layher the clause read:

"The Assured shall give immediate notice in writing with full particulars, of the happening of any occurrence likely to give rise to a claim under this Certificate, of the receipt of the Assured of notice of any claim and of the institution of any proceedings against the Assured…"

19. In that case the event (a storm blowing off a temporary roof erected on scaffolding over a National Trust property) occurred on 25 January 1990. Two workmen died and there was substantial damage. Two years later the National Trust commenced proceedings against the contractors employed to erect the scaffolding and the roof. The contractors had employed sub-contractors to supply and fit the roof; and they had used components supplied by the claimants. In June 1992, the claimants gave notice to the insurers of a possible claim by the subcontractors based on a possibly negligent design of the wedges securing the roof. They gave further notices when they were joined to the proceedings brought by the National Trust. The claims were compromised and the claimants sought indemnification from their insurers. This was refused on the ground that the incident in 1990 was "an occurrence likely to give rise to a claim" of which immediate notice should have been given.
20. The judge held that the incident was not such an occurrence. The Court of Appeal (Saville LJ, as he then was, with whom Lord Justices Brooke and Nourse agreed) held that "likely" meant at least a 50% chance of success. The fact that a claim was "possible" was not enough and the judge's finding had been correct.
21. Saville LJ assumed without deciding that the test to be applied to the condition was an objective one, the question being whether, looking at the matter objectively, there was an occurrence likely to give rise to a claim. He then said:

"Since the condition requires immediate notice to be given, it seems to me to follow that the question must be answered by reference to the state of affairs as it existed immediately after the incident"

22. He then considered an alternative argument in the following terms:

"After the short adjournment Mr Mawrey sought to develop a quite different argument, when he submitted that an occurrence within the meaning of the clause only becomes an occurrence likely to give rise to a claim when, and if, later events show that a claim is likely; and he submitted in that regard that, in the circumstances of the present case, some time in July 1990 there were facts and matters which indicated that at that stage Layher Limited perceived the possibility, if not the likelihood, of a claim against them.

Again I regret that I cannot accept this submission. The incident took place on 25 January 1990. The fact that at a later stage a claim may be said to have become likely cannot to my mind, without doing irretrievable damage to the ordinary words used in the clause, mean that an occurrence likely to give rise to a claim occurred at a later stage; for, in truth, there was no occurrence other than that which took place on 25 January."

Jacobs v Coster

23. In Jacobs v Coster on 23 March 1994 the claimant fell over on the forecourt of the defendant's petrol filling station and injured her leg. She did not then blame the defendant. On 13 October 1994, her solicitors wrote to the defendant intimating a claim. The defendant notified the insurers of the accident on 26 October 1994 shortly after receiving the letter. The insurers denied liability on the basis that the insured had failed to comply with condition 5 (a) of the policy.
24. The conditions of the policy included the following:

"5. If any event gives or is likely to give rise to a claim, the Insured (or his representative) must:

a) report the details immediately to the Company and send a written claim within thirty days but within seven days if the claim is for riot, civil commotion or malicious damage.

….

8. The due observance and fulfilment of the terms exclusions conditions and endorsements of this Policy in so far as they relate to anything to be done or complied with by the Insured and the truth of the statements and answers in the proposal will be conditions precedent to the liability of the Company to make any payment under this Policy."

25. Laws LJ, giving the judgment of the court, was prepared to assume that clause 5(a) must be construed and applied objectively, but taking account of such knowledge as the insured had. That was what Counsel for the insurers had submitted. Laws LJ rejected the reasoning of the judge that just because the plaintiff had had to be carried by two men into the payment kiosk and removed to hospital in an ambulance a reasonable man would have realised that there was a likelihood of a claim. He was loathe to think that our society had reached such a sorry state and did not think that it had.

Verelst

26. In Verelst's Administratrix v Motor Union Insurance Company Limited [1925] 2 KB 137 a policy of insurance covering the death of the insured by accident contained the following condition:

"In case of any accident, injury, damage or loss… the insured or the insured's representative for the time being shall give notice…in writing to the head office of the company of such accident, injury, damage or loss as soon as possible after it has come to the knowledge of the insured or of the insured's representative for the time being"

27. On January 14 1923 the insured was killed in a motor accident in India. Her personal representative, who was her sister and who lived in London, learnt of her death within a month. But she did not know of the existence of the policy until January 1924 when she found the policy whilst going through some old papers of her sister when she visited her sister's former residence in Ripon. She gave notice of her death to the insurance company as soon as possible thereafter. The insurance company repudiated liability on the ground that notice was not given as soon as possible.
28. Roche J upheld the decision of an arbitrator that the notice had been given as soon as possible within the meaning of the condition. He accepted that "as soon as possible" meant as soon as possible in the circumstances which prevailed and applied to the administratrix and that:

"As soon as one holds, as I do, that all existing circumstances must be taken into account, it is impossible to exclude such circumstances as the available means of the administratrix's knowledge of the policy and of the identity of the insurance company upon which the claim was to be made".

As he held:

"…the tribunal had to decide what was possible having regard to existing circumstances and assuming the exercise of a reasonable diligence on the part of the person under the obligation in question".

Zurich's submissions

29. Mr Moxon Browne submitted as follows. In Layher the condition required "immediate" notice. That is markedly different to the present condition which requires notice "as soon as possible", in contrast to the reference to "immediately" in the following sentence. In Layher the judge found that no claim was likely at the date of event. The Court did not, therefore, have to grapple with what the position would be if such a claim was likely but the insured was not aware that that was so; or with what he submitted would be the absurdity of an insured being required to give notice of an event of which he was not aware. In Jacobs, the assumption that the court was prepared to make – that the clause must be construed and applied objectively, but taking account of such knowledge as the insured had – provided a means of avoiding that absurdity. In the present case, where immediate notice is not required, it would be almost equally absurd if the insured did not have to give notification as soon as he became (or should have become) aware of an event that was likely to give rise to a claim. The true meaning of the clause must be that, if the insured did not know of the event when it occurred he must nevertheless give notice of it to the insurers when he becomes aware of the event, and that it was likely to give rise to a claim, or when he ought to have become so aware. The effect of the phrase "as soon as possible" was not limited to specifying a period after the event within which notice must be given. It also meant that the obligation to notify arose when the state of knowledge of the insured was such that it was, or should have been, possible to do so. The obligation was to give full particulars. That itself is consistent with a duty on the part of the insured to be pro-active in making inquiries and signifies that the notice might fall to be given some considerable time after the event when such particulars are available.

Maccaferri's submissions

30. Mr Colin Edelman QC for Maccaferri disputed this and submitted as follows. In order for the condition to apply there must be the occurrence of an event at a particular time. Here the relevant event occurred on 22 September 2011. The event must have had the characteristic that it was likely to give rise to a claim. The notification to be given is notification of an event with that characteristic. The phrase "as soon as possible after the event" does no more than specify how soon after the event notice must be given. The obligation to give full particulars signifies no more than that the insured should give whatever information he has available. The critical first question is whether the event, when it occurred, was likely to give rise to a claim. That question depends on what the insured actually knew and whether, in the light of what the insured then knew, it was objectively likely that a claim would arise.
31. The answer to that question is either "yes" or "no". The fact that months later it becomes likely that a claim will arise is neither here nor there if that was not likely at the time. That fact does not create a new occurrence. The insurers' contentions require "as soon as possible" to do double duty by providing both when the obligation to give notice arises and how soon after it arises notice should be given. This is an illicit interpretation. If the condition had said that notice had to be given within 30 days, it could not be said that the period ran from the date of the emergence of the likelihood of a claim. The use of the phrase "as soon as possible" instead of "immediately" cannot mean that it does double service in the way suggested. "Immediately" itself does not mean instantaneously but "with all reasonable speed considering the circumstances of the case": Re Coleman's Depositories Limited [1907] 2 KB 798 at 807, per Fletcher Moulton LJ, applied in Aspen Insurance UK Limited v Pectel Limited [2009] Lloyd's Rep IR 440. The words "as soon as possible" allow a little more leeway to the insured but cannot change the starting point for the notification as laid down in Layher and applied in Jacobs. In effect the insurers seek to put a gloss on the words of the clause so as to make it a requirement "to give notice of any event likely to give rise to a claim, as soon as sufficient information and/or particulars about the likelihood of a claim were to hand so as to make it both possible and reasonably practical to give such notice"; paragraph 3 (2) of the Defence. The clause might have said that but it did not.

Conclusion

32. I do not accept Zurich's construction of the condition. This is a condition introduced by Zurich into its policy which has the potential effect of completely excluding liability in respect of an otherwise valid claim for indemnity. If Zurich wished to exclude liability it was for it to ensure that clear wording was used to secure that result. It has not done so. It is possible to construe the use of the phrase "as soon as possible" as meaning that even if, when the event occurred, it was not likely to give rise to a claim, the obligation to notify would arise whenever thereafter the insured knew or should have known that an event which had occurred in the past was likely to give rise to a claim. But I regard this as a strained interpretation and erroneous.
33. It is, in any event, far from clear that that is the right interpretation and given the nature of the clause the ambiguity must be resolved in favour of Maccaferri. Clauses such as these need to be clear if they are to have effect: Royal and Sun Alliance v Dornoch [2005] EWCA Civ 238. That is particularly so in circumstances where the context in which the clause was agreed was that Layher and Jacobs had been decided as they had. Although the wording in the present case is not identical to the wording in those cases, the two cases indicate that prima facie whether there is an obligation to notify an occurrence as one likely to give rise to a claim is to be determined by reference to the position immediately after it occurs. Further, Zurich's construction imposes an obligation to carry out something of a rolling assessment as to whether a past event is likely to give rise to a claim (and possibly as to whether an event has happened at all) as circumstances develop. There are clauses which have that effect, particularly in claims made policies insuring against professional liability, but they are not in this form. If that was what was intended, the insurers could be expected to have spelt it out.
34. The question therefore is whether, when the event occurred (an occasion not limited to the exact moment) it was likely to give rise to a claim. That will depend on whether in the light of the actual knowledge that the insured then possessed a reasonable person in his position would have thought that it at least 50% likely that a claim would be made.

Kidsons

35. In HLB Kidsons & Ors v Lloyd's Underwriters [2009] EWCA Civ 1205 this court was concerned with a dispute in respect of a policy under which the assured, a firm of accountants, was bound to give notice "in writing as soon as practicable of any circumstances of which they shall become aware during the period specified in the Schedule which may give rise to a loss or claim against them". If they did so "any loss or claim to which that circumstance has given rise which is subsequently made after the expiration of the period specified in the Schedule shall be deemed for the purpose of this Insurance to have been made during the subsistence thereof." In effect the giving of notice provided for an extension of cover. The dispute was as to whether certain notices had been validly given.
36. In the course of his judgment Toulson LJ, as he then was, said:

"140 At the other end of the spectrum are cases in which any reasonable person in the insured's position would recognise a real risk of a claim. If so, the insured would be duty bound to give notice of it to a prospective insurer. He would also in my view be bound to give notice of it to the current insurer if the terms of the policy required him to give notice of any circumstance of which he became aware and which might give rise to a claim.

"In short, in my judgment the right general approach to a policy clause which entitles an insured to give notification of a circumstance which may give rise to a claim, and thereby cause the risk to attach to that policy, is to treat the right as subject to an implicit requirement that the circumstance may reasonably be regarded in itself as a matter which may give rise to a claim. The right general approach to a policy clause which goes further and imposes a duty on the insured to give such a notification is to treat it as implicitly limited, not only by the requirement that the circumstance may reasonably be regarded as a matter which may give rise to a claim, but to a circumstance which either the insured notifies or which any reasonable person in his position would recognise as a matter which may give rise to a claim and therefore requiring notification to the insurer".

[Bold added]

37. Although the court in that case was concerned with a clause which required notification of "any circumstances of which they shall become aware" the obligation to notify the occurrence of an event likely to give rise to a claim cannot, as Mr Moxon Browne correctly asserts, oblige an insured to notify that of which he has no knowledge. I would construe the reference to the event being "likely to give rise to a claim" as meaning that, on the facts known to the insured that likelihood ought to have been apparent to him. Likelihood in this context must be apparent to someone and the insured is the obvious candidate. At the same time, likelihood should not be determined by the insured's subjective views (which may be idiosyncratic).
38. I do not regard Verelst's case as affecting the position. In that case the insured's representative was aware of the relevant event (the death of the insured) soon after it had happened. In the present case, the issue is as to whether an event with the relevant characteristic occurred; as to whose perception of the characteristic is material; and as to what that person needed to know for the obligation to notify to arise. Verelst's case gives a generous ambit to the words "all the circumstances" but does not deal with the logically prior question as to whether a duty to notify had arisen at all.
39. Knowles J was not satisfied that, when the accident occurred, there was at least a 50% chance that a claim against Maccaferri would eventuate. As he put it:

"16 …. There had been an accident. The gun was involved. It was a possibility, but not more, that the accident involved a fault in the gun. But there were other possibilities: a fault in the way in which the gun was used, or no fault at all.

17 The Claimant was not blamed at the time. True, the accident was very serious: someone had lost their sight. But that seriousness does not increase the likelihood that the allegation would be that there was a fault in the gun. At least in context, the likelihood of a claim cannot simply be inferred from the happening of an accident: see Jacobs v Coster and Avon Insurance (above, at [17]). A possibility of a claim is not enough to engage the obligation under the first sentence of Clause 2."

40. In my judgment, the judge was perfectly entitled to reach this conclusion. When the incident occurred, on the facts then known to Maccaferri, it was not at least 50% likely that there would be a claim. The circumstances of the "incident" were unclear; it had not been made clear to Maccaferri that a c-clip had got into someone's eye or that someone had been seriously injured. That the gun was at fault was no more than a possibility and there were many others. I note that even during the course of the subsequent proceedings two of the experts could find nothing wrong with the gun.
41. In those circumstances, Zurich is not entitled to rely upon the condition as a ground for denying liability.
42. The judge also accepted Mr Abbey's evidence that he asked for information from those to whom Maccaferri had hired the gun but got no answer. He, also, held that "reasonable diligence" if that was what (contrary to his view) was required did not require more pressure for information than was used, when no blame was being directed at Maccaferri at the time. He considered the computerised record of communications kept by Jewson which suggested communication with someone at Maccaferri other than Mr Abbey between 2011 and 2013. He was not prepared to accept that the records of those communications were sufficient to demonstrate that through this unnamed person Maccaferri was aware that "an event likely to give rise to a claim" had occurred or that with reasonable diligence it could have discovered that such an event had occurred.
43. These findings, if they stand, would of themselves disentitle Zurich to rely on the condition. Mr Moxon Browne has made extensive submissions as to why these findings cannot stand by reference to more material than that referred to by the judge. However, in the light of the conclusion I have reached on the question of construction I do not regard it as appropriate to lengthen this judgment by a consideration of these points.
44. I would dismiss the appeal.

Lady Justice Black

45. I agree.