University of Exeter v Allianz Insurance PLC

[2023] EWCA Civ 1484 

We discussed this case in Dispatch 274. In 1942, a bomb was dropped on Exeter. The bomb did not explode but lay undiscovered until 2021 when it was unearthed during building works. Bomb disposal experts were called in who determined that the bomb should be exploded as it could not be safely transported away. UoE submitted an insurance claim in relation to the damage caused by the controlled detonation. At first instance, 

HHJ Bird held that the damage in respect of which the claim was made fell within the scope of the War Exclusion Clause being loss or damage “occasioned by war”. UoE appealed. HHJ Bird had concluded that the “proximate cause” of the loss was the dropping of the bomb, which was an act of war, and not the deliberate act of the bomb disposal team 79 years later in detonating the bomb. 

Coulson LJ noted that proximate cause does not mean the last in time. It means that which is proximate in efficiency; what matters is the dominant, effective, or efficient cause of the loss. The judge also noted that there was no authority where potential cause X occurred almost 80 years before the damage it was said to have caused, or where it was, in fact, impossible for the loss and damage now the subject of the claim to have been caused when potential cause X occurred (because the buildings that were damaged had not even been built in 1942). There were, however, a number of cases in which the proximate cause was found to be the first event in time, even when the later event might have been said to trigger the damage complained of. 

Allianz also said that, even if it was wrong to say that the dropping of the bomb was the proximate cause, it was a concurrent proximate cause of the loss and damage, and therefore, the loss was still excluded. UoE said that if the court was persuaded that the proximate cause of the damage was the controlled detonation in 2021, then there was no other cause of “approximately equal efficacy”. 

Coulson LJ agreed with HHJ Bird. The loss and damage in February 2021 resulted from two concurrent causes of approximately equal efficacy. One was the dropping of the bomb in 1942. The other was its controlled detonation almost 80 years later. It was the combination of these two causes which made the loss inevitable, or at least in the ordinary course of events. Neither would have caused the loss without the other. 

It was a “classic” case where there were two concurrent causes of the loss and damage: the act of war in 1942 and the detonation of the bomb as a result of the attempted LOT in 2021. They were of approximately equal efficacy. One of those concurrent causes was expressly excluded from cover under the policy. The appeal was dismissed. 

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