Stuchbery v Tappoos Holdings Ltd [2005] FJCA 12; ABU0034.2004S (18 March 2005)

IN THE COURT OF APPEAL, FIJI ISLANDS
ON APPEAL FROM THE HIGH COURT OF FIJI

CIVIL APPEAL NO. ABU0034 OF 2004S
(High Court Civil Action No. HBC0355 of 2001S)

BETWEEN:

ROBERT ARTHUR STUCHBERY
Appellant

AND:

TAPPOO HOLDINGS LIMITED
First Respondent

AND:

TAPPOO LIMITED
Second Respondent

Coram: Tompkins, JA
Smellie, JA
Scott, JA

Hearing: Tuesday 8 March 2005, Suva

Counsel: L.M. Daubney SC and S. Sorby for the Appellant
B.C. Patel for the Respondent

Date of Judgment: Friday, 18 March 2005

JUDGMENT OF THE COURT

Introduction

[1] At 10.45 am on 19 May 2000, George Speight and several armed persons stormed Parliament and took the Prime Minister and government members of Parliament hostage. At 12.49 and thereafter the shop occupied by the respondents (“Tappoo”) in the Suva central business district was looted by rioters. Tappoo claimed for the losses it suffered from its insurers, the appellant and other persons subscribing to a Lloyds insurance policy (“Lloyds). Lloyds denied liability.

[2] Tappoo commenced separate proceedings in the High Court challenging the denial of liability. Following a hearing in the High Court before Pathik J that concluded on 3 March 2003, he delivered his judgment on 19 May 2004, in which he held that Lloyds was liable to indemnify Tappoo. From that judgments Lloyds has appealed.

Factual background

[3] After a detailed review of the evidence, the judge made the following factual findings:

“(a) On 19 May 2000 at 10.45 a.m. George Speight and several armed persons stormed Parliament and took the Prime Minister and certain Parliamentarians hostage.

(b) At 12.49 pm the plaintiffs’ shop was rioted and looted.

(c) There were three separate groups of people who were involved in the various incidents. It is quite obvious on the evidence that the ‘marchers’ were a separate group from those who stormed Parliament; and the rioters and looters were an altogether different group which looted the plaintiffs’ shop.

(d) The marchers were issued with permits to march and present a Petition to the President exercising their democratic right and seeking redress against certain policies of the Government.

(e) The ‘marchers’ learnt of takeover of Parliament from Joe Brown at Government House Gate. They rushed to Parliament and remained at the gate and were not allowed to join Speight and his group.

(f) Thereafter rioting and looting at Tappoo’s took place 12.49 p.m. but there is no evidence that it was the marchers who returned to the city from Government House Gate who had started the riot and looting at Tappoo.

(g) The Tappoos were the first shop to be damaged and looted in the CBD of Suva. Looting was done by ordinary men, women and children.”

[4] He went on to find as a fact that the proximate cause of the loss and damage to Tappoo was looting and malicious damage by the rioters and looters and not the events in Parliament. The looting was for personal gain of the looters and not in furtherance of, or as part of, George Speight and his group.

[5] We return later to certain aspects of these findings of fact.

Tappoo’s claim

[6] The two Tappoo companies claim they are entitled to be indemnified by Lloyds under the policy of insurance number 509/PL008499 (“the policy”). They claim a total of F$3,517,615 for damages to premises, loss of contents and stock, loss of rental and loss of profits.

[7] Lloyd’s defence puts Tappoo to proof of its claimed losses. As an affirmative defence it claims it is not liable to indemnify Tappoo for its losses, relying on exclusion clause 1 (a) of the policy.

The policy of insurance

[8] The policy insures Tappoo for physical loss or damage to the insured property and for business interruption during the period of insurance subject to a number of exclusions and the exemptions set out in the policy. The limit of liability for the combined material damage and business interruption for the Suva shop was $5,000,000.00 subject to the special limits and deductions. The nature of the property insured and the terms of the policy are not relevant to the issues on this appeal, except for exclusion (1) (a).

[9] That clause reads:

“(1) This policy does not insure any loss or damage directly or indirectly caused by or resulting from:

(a) war, invasion, act of foreign enemy, warlike operations (whether war is declared or not), civil war, mutiny, rebellion, revolution, insurrection, military or usurped power. This exclusion does not apply to loss or damage caused by acts of terrorism or sabotage, providing the acts are not committed in time of war by any agent acting in connection with any operation of armed forces of a government or sovereign power.”

[10] Lloyds accepted that to the extent that it relied on the exclusion in the first sentence of (1) (a), the onus of proof rested on it. Tappoo accepted that to establish the exception to the exclusion in the second sentence, the onus of proof rested on it. In both cases, the standard of proof is on the balance of probabilities.

The findings in the High Court

[11] The judge’s findings, summarised, were:

• [a] The actions of the armed men taking over Parliament and holding the Prime Minister and others hostage did not amount to mutiny, revolution, revolution, rebellion or insurrection.
  
• [b] The actions of the rioters and looters did not pose a threat to the government and was not an insurrection.
  
• [c] For a loss to result from an excluded event, there has to be a causal connection between excluded event and the loss.
  
• [d] The proximate cause of the loss to the plaintiffs shop was the ‘riot’ and ‘looting’ and not what took place at Parliament House.
  
• [e] Any causal connection between the events in Parliament and riot and looting was broken. George Speight and his group did not have any responsibility to or for the rioters and looters of the Tappoo shop.
  
• [f] If the rioting and looting was in support of, or resulting from, a protest march, which he found it was not, which was organized by Fijian political parties to present a petition to the President seeking solution to their grievances that was also an act of terrorism because the march was for “political ends”, namely, directed at the government.
  
• [g] If the exclusion clause did apply, then Tappoo was entitled to relief under s 25 of the Insurance Law Reform Act.
  
• [h] Lloyds is liable under the policy to pay for the damage suffered by Tappoo resulting from the rioting and looting.
  

The issues on the appeal

(a) Whether the events which occurred at Parliament House in Suva on 19 May 2000 constituted one or more of mutiny, rebellion, revolution or insurrection within the meaning of those terms in the policy;

(b) Whether the damage to the Tappoo shop was directly or indirectly caused by or resulted from the events at Parliament House in Suva on 19 May 2000;

(c) Whether Tappoo can rely on the terrorism exception to exclusion 1(a) of the policy; and

(d) Whether Tappoo is entitled to relief under section 25 of the Insurance Law Reform Act 1996.

The events at Parliament House

What occurred

[12] A vivid description of what occurred at Parliament House is recorded in Hansard. The House appears to have been sitting in committee. We quote verbatim the account of what followed:

(At this point [10.45 a.m.] several heavily armed strangers [one wearing balaclava] stormed into the Chambers, kicked and jumped over the Bar shouting “Sit down, sit still and remain calm”

MR SPEAKER (Standing up) - what is this?

STRANGER NO 1 - This is a civil coup. Hold tight, nobody move.

MR. SPEAKER – Yes?

STRANGER NO 1 - This is a civil coup by the people, the taukei people and we ask you to please retire to your Chamber right now, Mr Speaker. Please co-operate so nobody will get hurt.

STRANGER NO 2 – Toso ike; o iko toso mai iki! (Move here; you, move here!) (Speaking to the other strangers) Dua me toso mai ike. Dua me tu mai kea. (One to move here, one to stand over there. Quickly!)

STRANGER NO 1 – Hold your seats.

STRANGER NO 2 –This is a civil coup, with arms and ammunition, by the people and for the people. Please just tell them not to get up.

MR SPEAKER - It is an illegal act, you know that!

STRANGER NO 1 - Mr Speaker, please, we do not want anybody to get hurt. Please do not make things difficult for us or I will be forced to use this (brandishing a gun). Would the Members of the Opposition leave the Chamber with the Speaker!

MR SPEAKER - (Still standing, and pointing a finger at Stranger No 1) If you have to shoot anyone in this House, you shoot me first!

HON RATU I. KUBUABOLA - (Still seated) No, we will not leave without our Speaker!

(At this point, Stranger No 2 fires two shots towards the ceiling of the Chamber.)

(Mr Speaker leaves the Chamber with the Leader of the Opposition and Opposition Members. All the doors to the Chamber are immediately closed and guarded by the armed strangers. Government Members and six Parliamentary staff remaining in the Chamber).

The House was unceremoniously adjourned at 10.55 a.m.”

[13] It is common ground that “STRANGER NO 1” referred to in the transcript was George Speight.

Meaning of rebellion, insurrection and revolution

[14] It was submitted on behalf of Lloyds that the events at Parliament House were either a rebellion or an insurrection. The meaning of these words in an insurance policy with a similar exclusion clause was considered by Mustill J in Spinney's (1948) Limited v. Royal Insurance Co Limited [1980] 1 Lloyds Rep 406 said, at 436-437:

“In my judgment the events which occurred in Lebanon before and at the time in question did not constitute either a rebellion or an insurrection. These words have several shades of meaning. I consider that they are used here in their most narrow sense, and not in the wider and more metaphorical way in which they are employed (as I shall later suggest) in some of the reported cases.

As regards “rebellion” I adopt the definition in the Oxford English Dictionary (Murray) - "...organised resistance to the ruler or government of one’s country; insurrection, revolt.”

To this I would add that the purpose of the resistance must be to supplant the existing rulers or at least to deprive them of authority over part of their territory.

The dictionary defines “insurrections” in a similar manner, but also suggests the notion of an incipient or limited rebellion. I believe that this reflects the distinction between two exceptions as they are used in the present clause, subject to the rider that a lesser degree of organisation may also mark off an insurrection from a rebellion. But with each exception there must be action against the government with a view to supplanting it.”

[15] To a similar effect are the observations of Saville J in National Oil Co. of Zimbabwe v. Sturge [1991] 2 Lloyds Rep 281 at 282. After referring to Spinney’s, he went on to say:

“"Rebellion" and “insurrection” have somewhat similar meanings to each other. To my mind, each means an organised and violent internal uprising in a country with, as a main purpose, the object of trying to overthrow or supplant the government of that country, though “insurrection” denotes a lesser degree of organisation and size than “rebellion””.

[16] The meaning of revolution was considered by this Court in Republic of Fiji & AG v Chandrika Prasad [2001] FJCA 2; CA 217.2000 1 March 2001. At page 29 of the unreported judgment the Court says:

"Whether what happened can be characterized as a “revolution” or not is probably the matter of choice of words. We are attracted to the definition of "revolution" in Brookfield Waitangi and Indigenous Rights Revolution, Law and Legitimation (1999) Auckland University Press:

“For the purposes of a constitutional theorist (though one with practical concerns as well) a revolution may be widely defined as the overthrow and replacement of any kind of legal order, or other constitutional change to it - whether or not brought about by violence (internally or externally directed) which takes place contrary to any limitation or rule of change belonging to that legal order."

Not all revolutions successful. We find that this one was not, for the reasons to be discussed later. Nor are all revolutions on the grand scale of the French Revolution or the Bolshevik Revolution in Russia. Nor are all revolutions "glorious", in the sense of ending the reign of a tyrant or replacing a repressive regime. Nor do all revolutions involve bloodshed."

Conclusion on this issue

[17] The Judge's reasons for concluding that the events at Parliament House did not amount to mutiny, revolution, rebellion or insurrection were briefly stated. He said that the only event that had occurred was the takeover of Parliament and holding hostage the Prime Minister and some parliamentarians. The Speight group had not at that time “arrogated to themselves the proper law making and law enforcing functions of the state”, citing Spinney’s.

[18] With respect to the Judge, we are unable to accept that conclusion for a number of reasons. Those participating in the events at Parliament House clearly intended to overthrow or supplant the government. The action was organized and violent. The latter is clearly established by the fact that they were armed and some of those arms were discharged. There can be no doubt that they intended to threaten violence to the parliamentarians.

[19] That it was the intention of the persons involved to supplant the authority of the government is obvious from their actions in taking hostage the Prime Minister, some of the members of cabinet, and the members of Parliament who belonged to the government. In doing so, they rendered impotent Parliament and the Cabinet constituting the executive, two of the three arms of the government, with the clear intention of replacing the government with some other form of authority.

[20] The use of the word "coup" on several occasions also confirms their intention to supplant the government. “Coup” is an abbreviation of “coup d’état” which is defined as “a violent or illegal seizure of power” Oxford Dictionary and Thesaurus (1995), which was exactly what those involved were seeking to achieve.

[21] Counsel for Tappoo submitted that to amount to a rebellion or insurrection there must be a popular rising of the people against the established authority - that uprising must involve a substantial proportion of the population. We do not accept that submission. What is crucial in determining whether an event amounts to a rebellion or insurrection is not the number of persons involved but rather the intention of those involved. If their intention is to overthrow the established government and if they take action to implement that intention, a rebellion or insurrection can result.

[22] We are satisfied that what occurred at Parliament House on 19 May 2000 amounted at least to an insurrection. There was an organized and violent attempt to overthrow the Government of Fiji. That the attempt was, in the end, unsuccessful is irrelevant. What is relevant is their intention to achieve that result. We are inclined to characterize the actions as an insurrection rather than a rebellion because of the limited degree of organization and relatively small number of persons involved.

[23] Counsel for Lloyds submitted that the actions could also amount to revolution or mutiny. We do not accept that submission. In view of our conclusion that there was at least an insurrection, we do not consider it necessary to give detailed reasons.

“directly or indirectly caused by or resulted from”

[24] We approach this issue of causation bearing in mind Mason CJ’s observation in March v E & M.H. Strathmare Pty Ltd [1991] HCA 12; (1990) 171 CLR 506 at 515:

“The common law tradition is that what was the cause of a particular occurrence is a question of fact which "must be determined by applying common sense to the facts of each particular case", in the words of Lord Reid: Stapley v Gypsum Mines Ltd [1953] UKHL 4; [1953] AC 663, 681. That proposition is supported by a long line of authority in the United Kingdom ...”

[25] On the same page he noted the observation of Dixon CJ, Fullagar and Kitto JJ in Fitzgerald v Penn [1954] HCA 74; (1954) 91 CLR 268, 277 that “it is all ultimately a matter of common sense” and ”[i]n truth the conception in question [i.e. causation] is not susceptible of reduction to a satisfactory formula.”

[26] On the meaning of the phrase “directly or indirectly”, counsel for Lloyds referred to Coxe v Employers Liability Insurance Corporation Ltd [1916] 2 KB 629, also an insurance case with an exclusion clause similar to the present, where Scrutton J said at 684:

“But the words which I find it impossible to escape from are "directly or indirectly." There does not appear to be any authority in which those words have been considered, and I find that it impossible to reconcile them with the maxim causa proxima non remota spectatur. [the immediate not the remote cause is to be considered] If it were contended that the result of the words is that the proximate cause, whether direct or indirect, be looked at, I should reply that that result does not appear to me to be consistent or intelligible. I am unable to understand what is an indirect proximate cause, and in my judgment the only possible effect which can be given to those words is that the maxim causa proxima non remota spectatur is excluded and that a more remote link in the chain of causation is contemplated than the proximate and immediate cause.”

[27] In Spinney's the policy had an exclusion clause that was substantially the same as that in the present case. In considering whether there was a sufficient causal connection between the operation of the excepted perils and losses, Mustill J said at 442:

“I do not find it necessary to discuss the reported decisions on the meaning of various individual words of the clause, for whatever they may mean on their own, it is quite clear that the draftsman has gone to great lengths to ensure that the doctrine of proximate cause does not apply. Plainly there must be some limit on the application of the clause, for the chain of causation recedes infinitely into the past. The draftsman must have intended to stop somewhere: and that place must be the point at which an event ceases to be a cause of the loss, and becomes merely an item of history.” (Emphasis added)

[28] The Judge found that the proximate cause of the loss to Tappoo’s shop was the riot and looting and not what took place at Parliament House. If by that he meant that the riot and looting was the immediate and direct cause of the loss, he is undoubtedly correct. However, it is apparent from the observations of Scrutton J in Coxe and Mustill J in Spinney’s that this does not decide the issue. The phrase "directly or indirectly" allows a more remote link in the chain of causation to provide the necessary connection.

[29] The Judge also found that the looting was done by ordinary men, women and children, and that the marchers were not involved in starting the riot and looting. Counsel for Lloyds challenged this finding, referring to evidence from some witnesses that some of the marchers may have gone to the central business district at about the time the rioting started. This is a straightforward question of fact to be determined according to the Judge’s view of the evidence. An appellate court will not reverse the trial judges finding of fact unless there is clear and irrefutable evidence that the finding is erroneous: see the comments of Thomas J in Rae v International Insurance Brokers (Nelson Marlborough) Ltd [1998] 3 NZLR 190, 199. No sufficient grounds have been advanced to justify this Court differing from the conclusion reached by the Judge as to the identity of the looters.

[30] Both counsel referred to the decision of the Court of Appeal of Trinidad and Tobago in Grell-Taurel Limited v Caribbean Home Insurance [2002] Lloyds Rep IR 655, [2002] 2 LRC 487. At about 5.50pm on 27 July 1990, members of Muslimeen bombed the police headquarters in Port of Spain and armed members of that group stormed Parliament killing six people and taking sixteen, including the Prime Minister, hostage. By 6.05pm the Muslimeen had seized the television and broadcasting facilities, and at 6.05pm the leader, Abu Bakr, appeared on television and announced that the Government had been overthrown. By 8 pm looting had commenced in Port of Spain. The issue for determination was whether under the terms of the exclusion in that case, the loss which had occurred as a result of the riot was "occasioned by or through or in consequence, directly or indirectly, of” insurrection.

[31] The Court of Appeal held that it was. Warner JA, delivering the principal judgment said at 667, after referring to Spinney’s:

“[Counsel for the appellants] recognised that in rebuttal the appellants have to show that the insurrection "had receded into part of history in the chronology of events relating to the loss". If therefore, the reasoning in Spinney’s is applied to the instant case, I do not think it can be said that the insurrection was so far removed in time and place, to the extent that it had nothing to do with the looting. The issue is . . . whether the looting was connected with the insurrection. The statement of agreed facts, standing on its own, provided cogent and unchallenged evidence that the appellants' loss was occasion indirectly, if not directly, by, through, or in consequence of the insurrection.

[32] The Judge’s conclusion on this issue was expressed in this passage of his judgment:

“On the evidence before me it is abundantly clear that there were two separate events on 19 May 2000, namely, firstly takeover of Parliament and secondly, the rioting and looting in the Central Business District of Suva. These events involved different people altogether with no common element in these two events occurring two hours apart and not continuous and in different parts of City of Suva quite some distance apart.

I accept as a fact, and I agree with Mr. Patel that although the riot and looting occurred after the takeover of Parliament there is no evidence that it occurred because of the takeover and nor is there evidence that the riot and looting was the result of the takeover as there was no causal connection between them. The chain of causation of the event in Parliament was clearly broken by the riot and looting which was an independent proximate cause of the Plaintiffs loss.”

[33] Clearly the Judge based this conclusion on his earlier finding that the looting was the proximate cause of the loss. That is not the issue. The issue is whether there is any connection between the insurrection and the rioting. It is correct, as the Judge found, that there is no direct evidence of such a connection, so the issue becomes whether such a connection can properly be inferred from the events that occurred, an inference that the Judge seems not to have considered. In any event, an appellate court is in as good a position as the trial judge to decide on the proper inferences to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge, see Warren v Coombes 1979 152 CLR 531 at 551. In the present case, the facts are undisputed.

Conclusion

[34] We consider that the conclusion that there was a causal connection, albeit indirect, between the insurrection and the rioting and looting leading to the loss suffered is inescapable. The evidence established that within a very short time of the insurrection, details of what had occurred were broadcast from Radio Fiji, so the events became known to the general public soon after they occurred. Some people may well have considered that the events at Parliament House, dramatic as they were, were likely to lead to a breakdown in law and order, rendering the police unable to prevent looting, as indeed proved to be the case. Such a realization would undoubtedly have played a part in the decision by those members of the public involved to start looting.

[35] The alternative to finding a causal connection is to conclude that the two events were completely unconnected. Counsel for Tappoo submitted that the occurrence of the rioting some two hours after the events at Parliament House was purely coincidental. That submission, in our view, is contrary to the common sense approach that should be taken when considering whether one event is connected to or caused by another. It defies common sense to hold that the rioting occurring when it did was a sheer coincidence. This was no ordinary event. Several witnesses referred to the rioting and looting to be on a scale far beyond anything that has been seen in Fiji before. Such an event does not occur for no reason. The events at Parliament House are just the sort of events that are likely to trigger the reaction that did occur. It can hardly be said that, at the time of the rioting and looting, the events at Parliament House two hours before had “receded into history”, to use Mustill J’s phrase in Spinney’s.

[36] We find that Tappoo’s loss resulting from the looting was at least the indirect result of or indirectly caused by the events at Parliament House.

Terrorism

[37] It was submitted in the High Court on behalf of Tappoo that the actions of the rioters and looters were acts of terrorism, as a result of which the exclusion in clause 1 (a) does not apply. On this issue, the Judge made the following finding:

“In view of my findings of fact particularly that the ‘marchers’ were a separate group from those who stormed Parliament, and that the rioters and looters were an altogether different group which looted the plaintiffs’ shop, no question of acts of terrorism arises as far as looting at plaintiffs’ shop is concerned. Hence there is no need for ‘terrorism’ to be proved by the plaintiffs. However, if the rioting and looting was in support of or in connection with the takeover of Parliament, which I find it was not, then that would have been an act of terrorism.”

[38] We find no reason to differ from this conclusion, save that we would not accept his finding that, if the rioting and looting were in support of or in connection with the takeover of Parliament, that would have been an act of terrorism. We have accepted the judge’s finding that the rioters and looters were separate from those responsible for the events at Parliament House. There is no evidence to suggest that the rioters and looters were motivated by any political considerations. Counsel for Tappoo did not advance this contention at the hearing before us, other than by referring to his submissions in the High Court. The terrorism ground for avoiding the exclusion clause cannot succeed.

Section 25, Insurance Law Reform Act 1996

[39] Counsel for Tappoo submitted that it was entitled to be indemnified by virtue of this section. It provides:

25. Where-

(a) The provisions of a contract of insurance the circumstances in which the insurer is bound to indemnify the insured against loss are so defined as to exclude or limit the liability of the insurer to indemnify the insured on the happening of certain events or on the existence of certain circumstances; and

(b) In the view of the court or arbitrator determining the claim of the insured the liability of the insurer has been so defined because the happening of such events or the existence of such circumstances was in the view of the insurer likely to increase the risk of such loss occurring,—

the insured shall not be disentitled to be indemnified by the insurer by reason only of such provisions of the contract of insurance if the insured proves on the balance of probability that the loss in respect of which the insured seeks to be indemnified was not caused or contributed to by the happening of such events or the existence of such circumstances.

[40] But for a minor typographical error – the omission of the word “by” at the commencement of paragraph (a) - this section the same as s 11 of the New Zealand Insurance Law Reform Act 1977.

[41] This section was considered by the New Zealand Court of Appeal in New Zealand Insurance v Harris [1989] NZCA 384; [1990] 1 NZLR 10. At 15, Richardson J, delivering the judgment of the Court, said that the section contemplates a two step inquiry where the contract of insurance excludes or limits the insurers liability on the happening of certain events or the existence of certain circumstances.

[42] The first is to determine whether the insurer’s liability has been so defined because the happening of the events or the existence of the circumstances was in the view of the insurer likely to increase the risk of the occurrence of the loss.

[43] The second step involves an inquiry whether the loss in respect of which the insured seeks to be indemnified was caused or contributed to by the happening of the events or the existence of the circumstances.

[44] On page 16 he observed that a simple "but for" approach is not appropriate:

“Rather it is a matter of determining, under a section concerned with the exclusion from cover where the limitation has been included because the event or circumstance is likely to increase the risk of loss occurring, whether the loss actually sustained by the insured was caused or contributed to by the relevant event or circumstance. If the existence of the relevant circumstances did not in itself increase the risk of loss, there no justification either in principle . . . or under the statutory language, for denying the insured the protection of the cover.”

[45] In this case the relevant events are mutiny, revolution, rebellion or insurrection. It is obvious that they were included because the insurer considered that the happening of any of these events was likely to increase the risk of the occurrence of the loss.

[46] The issue on the application of the section is whether, in this case, the insurrection “caused or contributed to” the rioting and looting that resulted in the loss suffered by Tappoo. When he considered this section, the Judge held that "caused or contributed" mean that it must be the "proximate" cause or should have "materially" contributed to the loss. Without expanding further on his reasons, he held that Tappoo was entitled to relief against the exclusion clause under s 25.

[47] We have concluded that the insurrection at least indirectly caused or contributed to the rioting and looting. There does not appear to us to be any practical difference between an event that indirectly caused or resulted in another event, and an event that contributed to that other event. On the ordinary meaning of the words, there can be no practical distinction.

[48] It follows that in the present case the insurrection at least contributed to the rioting and looting that resulted in the loss. Accordingly the section cannot be applied to exempt Tappoo from the exception.

Result

[49] The appeal is allowed. The judgment in the High Court holding Lloyds liable to pay for damage under the policy is set aside. In lieu thereof, there will be judgment for Lloyds.

[50] Lloyds is entitled to costs and disbursements in the High Court to be agreed or taxed. Lloyds is entitled to costs in this Court which we fix at $2,000.00, plus disbursements on the appeal to be agreed or fixed by the Registrar.

Ward, P
Tompkins, JA
Smellie, JA

Solicitors:

Howards, Suva for the Appellant
Messrs Young and Associates, Lautoka for the Respondents