Porter v Zurich Insurance Company, Court of Appeal - Queen's Bench Division, March 05, 2009, [2009] EWHC 376 (QB)
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Porter v Zurich Insurance Company, Court of Appeal - Queen's Bench Division, March 05, 2009, [2009] EWHC 376 (QB)
Neutral Citation Number: [2009] EWHC 376 (QB)
Case No: 7LV90047IN THE HIGH COURT OF JUSTICEQUEEN'S BENCH DIVISIONLIVERPOOL DISTRICT REGISTRYManchester Civil Justice CentreCrown Square, Manchester Judgment Date: Thursday, 5th March 2009 Before:MR JUSTICE COULSON- - - - - - - - - - - - - - - - - - - - -Between:- - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - -Mr Robert Sterling (instructed by E.Rex Makin & Co) for the ClaimantMr Daniel Crowley (instructed by Beachcroft LLP) for the DefendantHearing Dates: 24th, 25th and 26th February 2009- - - - - - - - - - - - - - - - - - - - -JudgmentThe Honourable Mr Justice Coulson: A. INTRODUCTION1. By a policy of insurance effective for twelve months from 12 September 2000, the defendant (``the Zurich'') agreed to indemnify the claimant (``Mr Porter'') against loss of or damage to his property known as `Claremond', Landican Lane, Bebington, Wirral, Merseyside L63 6HW (``the property'') and the contents and personal possessions within.2. General Exclusion Clause 1 of the policy excluded ``any wilful or malicious act by a member of the family or by a person lawfully at or in the home''. In addition, Condition 3 of the policy required Mr Porter to co-operate with the Zurich in various ways, and Condition 6 required him ``and members of the family [to] take all reasonable steps to safeguard against loss, damage, accident or injury''.3. On the evening of 27 March 2001, following a series of disastrous events in his business and personal life, Mr Porter, who had been drinking heavily and was suffering from a persistent delusional disorder, decided to kill himself by setting fire to the property. He set a fire but, once a large part of the living area was ablaze, he changed his mind and escaped from the property. The property was severely damaged in the fire and was rendered uninhabitable. Fortunately, no-one was injured, although the family dog died a few days later due to the effects of smoke inhalation.4. The principal claim in these proceedings comprises Mr Porter's claim against the Zurich, pursuant to the terms of the insurance policy, for the damage caused by the fire. The Zurich defend that claim on the grounds that, because Mr Porter started the fire intentionally, he cannot recover under the policy, because that would be contrary to public policy and/or the general law of insurance and/or because the fire arose from his wilful or malicious act, and was therefore excluded by General Exclusion Clause 1. In response, it is alleged that, so grave was Mr Porter's mental illness at the time of the fire, his ``thoughts and judgement were grossly impaired and he was not acting as a free agent'' This quotation comes from the first report of Dr Mukerjee, dated 23.10.06 and referred to in greater detail in paragraph 71 below.. Accordingly, it is said that neither the public policy nor the contractual exclusion clause were triggered, because, although it is admitted that he set fire to the property, Mr Porter ``did not do so deliberately, wilfully or maliciously'' Paragraph 3 of the Reply..5. After the fire, once the property had been boarded up, there were a succession of three thefts from the property. Although claims were made by or on behalf of Mr Porter to the Zurich in respect of these three thefts, the loss adjusters appointed, McLaren Toplis, were unable to make any progress at all in their investigations of the circumstances. Despite their efforts, no meetings took place with Mr and Mrs Porter, no inspections of the property could be arranged, and no statements were taken. Accordingly, the Zurich defend the theft claims on the grounds that Mr Porter (and/or those acting on his behalf) were in breach of Condition 3 of the policy (co-operation), and that the consequences of those breaches equate to or cancel out any claim under the policy that Mr Porter would otherwise have.6. The trial on liability only took place on 24th, 25th and 26th February 2009. At the conclusion of the hearing I told the parties that I would hand down a written judgment on Thursday, 5th March. This is that Judgment and I should, at its outset, acknowledge the considerable assistance that I received from both counsel during this trial.7. I propose to deal with the fire claim in this way. At Section B below, I deal with the principles of law, in particular insurance law, applicable to circumstances such as these. At Section C below I set out the background to the fire and, at Section D below, I deal...See the full content of this document
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