Until recent past the doctrine of proximate cause was not used to be considered as a principle as such.
The present school of thought has given this doctrine the status of a principle and, therefore, now-a-days it is considered to be one of the six principles of insurance, backed up by sound rules and legal dictum.
The principle of proximate cause virtually revolves around the claims administration and, more precisely, diagnosing the payability or otherwise of a claim on the question of perils covered by a policy.
A policy may cover certain perils mentioned specifically therein (known as insured perils), whilst some perils may be specifically excluded (known as excepted perils) and some may still be neither included nor excluded (known as uninsured perils).
It is not always that much straight forward that a loss would be caused by a singular insured or uninsured or an excepted peril, so that a claim would clearly be either payable or not payable.
Difficult situations do occur where numbers of perils get involved simultaneously, some insured, some uninsured and some still accepted.
More so, the position gets further complicated when an insured peril is followed up by an excepted peril or an excepted peril is followed up by an insured peril, simultaneously getting mixed up by uninsured perils.
The principle of proximate cause has been established to solve such a cumbersome situation and to enable a claims manager to decide whether a claim is at all payable or not, and if payable, then to what extent.
What is this proximate cause then? It has been well defined in the leading case of Pawsey V. Scottish Union and National (1907) as follows;
“Proximate cause means the active, efficient cause that sets in motion a train of events which brings about a result, without the intervention of any force started and working actively from a new and independent source”.
It is the immediate cause and not the remote cause. The maxim is, ’’Causa proxima non remota spectatur”. Immediate or proximate means Proximate in efficiency and not necessarily in time. The consideration is what has actually brought about the result?
A ship was severely torpedoed and was in the process of sinking. Almost immediately there was a cyclonic storm and the ship sank. It was held that the proximate cause of sinking of the ship was torpedo (Leyland Shipping Co. V. Norwich Union Fire Insurance Society, 1918).
Although, cyclone was nearer to sinking in time, nevertheless, torpedo was the active efficient cause, because the ship was so hard hit by torpedo that it would have definitely sunk.
May be the cyclone has accelerated the speed of sinking and it can, simply be regarded as a remote cause.
To take another example, a man falls from a ladder at low height and scratches his leg a little. He is taken to hospital and in the hospital he contacts cholera from the next bed patient and dies.
The proximate cause of his death is cholera and not falling from the ladder, or for that matter scratches on his leg, even though it can be wrongly argued that has he not had scratches on his leg he would not have gone to hospital and contacted cholera as such.
In this case scratches may be a remote cause. Let us take another example. A man scratches his leg falling from a ladder. He is being taken to hospital by an ambulance.
On way to hospital the ambulance meets a head-on-collision with a lorry and all persons on board the ambulance die including our man.
The proximate cause of our man’s death is collision and certainly not scratches. Collision being the cause of death is very efficient here whilst scratch is inefficient and remote.
Certain quotations may be very helpful to the students at this stage and they should try to realize the implications of such quotations, which would help them in removing a number of confusions that might occur in their mind about proximate cause.
- Lord Bacon in his Maxims of Law has said,
“it were infinite for the law to consider the cause of causes, and their impulsions one of another ; therefore it contenteth itself with the immediate cause, and judgeth of acts by that, without looking to any further degree”.
- In Leyland Shipping Co. V. Norwich Union Fire Insurance Society (1918), the maxim laid down was,
“To treat proximate cause as if it was the cause which is proximate in time is out of the question. The cause which is truly proximate is that which is proximate in efficiency. That efficiency may have been preserved although other causes may meantime have sprung up, which have yet not destroyed it or truly impaired it, and it may culminate in a result of which it still remains the real efficient cause to which the event can be ascribed”.
- In YORKSHIRE DALE S.S. Co. V. MINISTER OF WAR TRANSPORT (1942), the statement made was,
“Choice of the real or efficient cause from out of the whole complex of the facts must be made by applying commonsense standards. Causation is to be understood as the man in the street, and not as either scientist or the metaphysician would understand it”.
SOME MORE EXAMPLES
It is only by considering a number of propositions and examples that the doctrine of proximate cause can best be understood.
A man goes to a late night cinema and whilst returning home from the show he is attacked by a group of vandals, stabbed and killed.
The proximate cause of his death is stabbing and certainly not going to the cinema, although it may be wrongly argued that has he not had gone to cinema he would not have met the vandals and got killed in this way.
Here, going to cinema may be simply a remote cause without proximately causing his death.
To take another example, a man riding a horse in a lonely hilly place falls from the horseback, gets injury and remains unconscious the whole night under exposure to severe cold. The following morning he is discovered by some persons.
In the meantime due to severe exposure he contacts pneumonia and dies.
Here the proximate cause of his death is accident or falling from the horse back, the reason being that, injury leading to unconsciousness, exposure to severe cold and then pneumonia are all natural events developing gradually one after another without really being intervened by a new or independent source (The example is based on a judgment given in ETHERINGTON V. LANCASHIRE AND YORKSHIRE ACCIDENT INSURANCE Co., 1909)
For finding out the proximate cause we shall have to watch closely the chain of events, leading ultimately to a result, and out of such events whether in broken or unbroken sequence, interrupted or uninterrupted, the cause proximate to the result must be established.
So long the first cause retains its identity and efficiency until the result we may say that it is the proximate cause.
If, however, the chain of causation is broken so that the first cause loses its identity, and a new cause develops bringing about the result actively and efficiently then we may tag the result to have been proximately caused by the new intervening cause.
To give an example, let us take 10 bricks arranged in a lined standing order one after another keeping a gap of say 6 Inches in between. Somebody gives a kick on the first brick and gradually the last brick in the line also falls.
Here the proximate cause of falling of the last brick is certainly the kick because the strength of the kick was such that it could efficiently make the last brick fall without the intervention of any new force started.
Let us, however, assume that as a result of the kick only 6 bricks fall but suddenly a man throws a stone on the 7th brick and gradually falls the 7th, 8th, 9th and 10th brick.
In this case the proximate cause of falling the last brick is throwing of the stone and not the kick because kick was not efficient enough to cause the last brick to fall.
On the other hand a new and intervening force developed (throwing of the stone) which was active, efficient and potent enough to cause the result, i. e., falling of the last brick. Let us take another example.
A policy covers- accidental fire but specifically excludes earthquake fire. There is an earthquake fire somewhere near the insured building. Due to the prevailing wind the fire spreads gradually to neighboring buildings one after another and ultimately sets the insured building into fire.
The claim is not payable because the proximate cause of loss is earthquake fire and not ordinary fire even though the earthquake had nothing to do with the insured building.
This is so because throughout the spread and travel, with the help of natural wind, the fire retains its identity as earthquake fire. The situation would have been different had the spread of fire been interrupted by a new and independent cause.
If, in the same example, it so happens that from mid journey of the fire somebody lights a candle stick, carries this fire and sets the property of somebody under fire then that resultant fire shall be accidental fire or malicious fire and certainly not earthquake fire as the chain of events has been broken by a new and independent force, which is active, efficient and potent enough to bring about the result. (This example is based on a Morgan Owen prize paper, C. 1.1, journal No. 42, 1939)
From all the examples explained herein before the readers would possibly appreciate that it is indeed the Common Sense that is required most to find out the proximate cause of a result. We should not try to find out the cause of causes thereby getting mixed up and complicating the issue.
A learned judge, therefore, rightfully commented with confidence, “if you want to find out the proximate cause, do not ask a scientist or a lawyer, ask a man from the street. Probably his answer will be the correct one”.
This comment certainly conveys the feeling of the learned judge as to how he feels the importance of common sense in finding out the proximate cause.
RULE OF PROXIMATE CAUSE
With regard to payability or otherwise of a claim, keeping in view the perils insured, uninsured and excepted, certain rules of proximate cause should be noted carefully.These are;
- Single Cause: When a single cause gives rise to a claim the issue is simple. If the cause is an insured one the claim is payable, if the cause is uninsured or excepted the claim is not payable.
- Concurrent Causes: It really becomes a difficult proposition when a loss is caused by the operation of a number of perils, some insured, some uninsured and some excepted. If no excepted peril is involved, then provided that there is at least one insured peril involved, the claim becomes payable by disregarding others.However, if excepted peril is involved with insured peril then if the effects of excepted peril can be separated from that of the insured peril then there is liability for the loss caused by the insured peril. If it cannot be so separated then there is no liability whatsoever.
- Unbroken Sequence: If excepted peril is followed by an insured peril, there is no claim. If on the other hand an insured peril is followed by an excepted peril there is claim for the loss caused by the insured peril. When several events occur in an unbroken sequence than provided there is no excepted peril involved, the whole claim is payable only if an insured peril is involved.
- Broken Sequence: If excepted peril is followed by an insured peril as a new and independent cause then there is liability for the loss caused by the insured peril. If on the other hand, an insured peril is followed by an excepted peril as a new and independent cause, here also there is liability for the loss caused by the insured peril.
WAIVER OF THE DOCTRINE
Sometimes the application of the rule of proximate cause may be waived by insurers through policy condition. The best example here is probably the standard fire policy. The policy does not cover loss due to “spontaneous fermentation”, but any resultant fire damage is covered.
This is because the insurers have used the word “its own” before “spontaneous fermentation” which means that only the property subjected to spontaneous fermentation is excluded but any resultant fire damage is covered.
Had the words “its own” not been there the resultant fire damage would not have been covered under the rule of proximate cause.
By using these two words, the insurers have intentionally waived the application of the rule of proximate cause.
SOME IMPORTANT LEGAL JUDGMENTS HAVING BEARING ON THE PRACTICAL APPLICATION OF THE DOCTRINE
- GASKARTH V. LAW UNION (1876)
- The insurer, Law Union, issued a fire policy to an insured covering fire, but not storm or cyclone etc. There was a fire in the insured premises as a result of which the walls lost strength, but nevertheless were standing. Some days later there occurred a furious storm which caused the walls to fall. The insured lodged a claim for fire.
- The insurer repudiated the claim on ground that the loss was proximately caused by storm and not fire. The dispute went up to court. It was held that the proximate cause of loss was storm and, therefore the insurer was entitled to repudiate the claim.
- ROGERS V. WHITTAKER (1917)
- An ordinary fire policy was given to cover a warehouse and the policy excluded war or warlike operations etc. The warehouse was completely damaged by fire arising out of a bomb being dropped from an enemy aircraft.
- The insurer repudiated the liability on the ground that even though the warehouse was damaged by fire, the proximate cause of the damage was warlike operation (i.e., enemy action) and fire was simply a remote cause. The judgment was given in favor of the insurer maintaining that the loss was proximately caused by enemy action which was not covered by the policy.
- COXE V. EMPLOYERS LIABILITY ASSU. (1916)
- This case is important particularly because it relates to a situation wherein the applicability of proximate cause was modified by special policy wordings. It was a personal accident policy covering accidental death but not caused directly or indirectly by or traceable to war. The fact was that, the insured was knocked down by a running train, in course of his duty as a military officer, whilst guarding a railway line.
- It was held that even though the proximate cause of his death was accident, the claim under the policy was not recoverable simply because the cause of the death could be remotely traced to war which was excluded from the ambit of the policy coverage. Had the wordings of the policy not been like that, the claim would have been clearly payable under the policy.