|
|
Home
| Databases
| WorldLII
| Search
| Feedback
High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION
CIVIL ACTION NO. HBC0205 OF 2001
Between:
RAJENDRA PRASAD BROTHERS LIMITED
Plaintiff
and
FAI INSURANCES (FIJI) LIMITED
Defendant
Mr. B. C. Patel for the Plaintiff
Mr. F. Haniff for the Defendant
JUDGMENT
A. THE CLAIMS
By originating summons dated 17 May 2001 Rajendra Prasad Brothers Limited, (the ‘plaintiff’) has sued Fai Insurances (Fiji) Limited (the ‘defendant’) seeking the determination of the Court on the following questions (as per the said summons):
arising out of any one, or combination of:
(a) a riot;
(b) civil commotion;
(c) terrorism;
(d) vandalism;
that occurred in the city of Suva on 19 May, 2000.
“5.1 This insurance does not cover any loss or damage occasioned by or through or in consequence or indirectly, or any of the following occurrences, namely;
(a) ...
(b) Mutiny, civil commotion assuming the proportions of or amounting to a popular rising, military rising, insurrection, rebellion, revolution, military or usurped power, or any act of any person or persons acting on behalf of or in connection with any organisation, the objects of which include the overthrowing of influencing of any de jure or de facto government by terrorism or by any violent means.”
is not applicable to the circumstances of this claim and the Defendant is wrong to rely upon it to decline liability and refuse payment.
B. BACKGROUND TO THE CASE
The background facts are that the Plaintiff’s shop at the corner of Struan and Robertson Roads, Suva was alleged to have been rioted and looted and destroyed by fire at about 1.30 p.m. on 19 May 2000.
The plaintiff says that it suffered loss in excess of $3 million as a result of that destruction.
The plaintiff was insured with the defendant company against loss or damage from, inter alia, malicious act, riot, civil commotion and terrorism under Policy No. 325. The claim is under Policy Nos. 325, 326 and 332 but counsel states that determination under Policy 325 will dispose of the entire claim.
The defendant has admitted paragraphs 1 to 13 and 19 to 27 inclusive of the first affidavit of Rajendra Prasad, company director, sworn 16 May 2001.
These admissions in summary are (as in plaintiff’s written submission at p2-3):
(a) the Plaintiff had a valid insurance cover on 19 May 2000 for risks, inter alia, of malicious act, riot, civil commotion and sabotage & terrorism.
(b) The Plaintiff’s shop at the corner of Struan and Robertson Roads, Suva was rioted, looted and destroyed by fire at 1.30 pm on 19 May 2000. That destruction has caused the Plaintiff substantial loss, in excess of $3.5 million.
(c) On 22 May 2000 notice of loss was given to the Defendant by the Plaintiff’s insurance brokers, Marsh.
(d) The Defendant appointed GAB Robbins, on 22 June 2000, to assist in the adjustment of the loss sustained “by the Plaintiff by the events of 19 May 2000”.
(e) On 17 July 2000 the Defendant declined the claim in reliance on printed general exclusion in clause 5.1(b) of the policy (see exhibit B, first Prasad affidavit).
In terms of the Policy the plaintiff lodged its claim but it was declined by the defendant on reliance of the said clause 5.1(b) of the printed general conditions in the Policy.
The defendant opposes the plaintiff’s claim objecting to the Declarations and Orders sought on the grounds stated below through its counsel in its written submissions (page 3) thus:
The Defendant submits that the events of the morning of 19 May 2000, specifically, the march through the streets of Suva, the entry into Parliament by armed gunmen and the attempted and/or overthrowing of the then government amounted to one or more of the exclusionary items set out in Clause 5.1 (b) of Policy 325, Clause 6(1)(b) of Policy 326 and 7.12 of Policy 332.
The Defendant further submits that it properly declined to indemnify the Plaintiff as the damage suffered by the Plaintiff was at least indirectly occasioned by or through or in consequence of the events referred to above i.e. the march through the streets of Suva, the entry into Parliament by armed gunmen and the attempted and/or overthrowing of the then government.
C. DEFENDANT’S SUBMISSION
It is Mr. Haniff’s submission on behalf of the defendant that the defendant knows that in view of the fact that the defendant has perhaps declined to indemnify the plaintiff it will have to establish that (as in its submission at p4):
(i) the events of 19 May 2000, specially, the entry into Parliament by armed gunmen and the attempted and/or overthrowing of the then government, amounted to any one or more of the exclusionary items in Clause 5.1(b); and
(ii) if (i) above is established, whatever damage that was suffered by the Plaintiff was at least indirectly as a result of one of those exclusionary items.
(iii) The Defendant accepts that not all the exclusionary items referred to above will be applicable on the facts of the present case. The Defendant will not rely on the following exclusionary items in 5.1(b): Civil commotion assuming the proportions of or amounting to a popular rising, military power, military rising, revolution and any act of any person or persons acting on behalf of or in connection with any organisation, the object of which include the overthrowing or influencing of any de jure or de facto government by terrorism or by any violent means.”
The defendant has to establish that the damage suffered by the plaintiff was indirectly caused by any one of the following exclusionary items of clause 5.1(b):
(i) Mutiny; (ii) insurrection; (iii) rebellion and (iv) usurped power
The defendant also accepts that the onus is on it to prove that the exclusion clause applies (vide Suresh Kumar Singh v Sun Insurance Company Limited (unreported) Suva, High Court Civil Action No. 382 of 2000S at 3, Scott J).
The learned counsel then deals with the various heads of the exclusion clause as stated below.
Mr. Haniff goes at great lengths dealing with the taking over of Parliament by George Speight and his supporters and refers to certain passages from cases arising out of the events of 19 May 2000. The cases he referred to were: Chandrika Prasad v The Republic of Fiji and Attorney-General of Fiji (HBC0217 of 2000L at 17 (unreported), Republic of Fiji & Anor. v Prasad [judgment 2001]), Civ. App. No. 78 of 2000S FCA) (Reported NZAR at 385), The Reverend Akuila Yabaki & Ors v. The President of the Republic of the Fiji Islands & Anor. (Civ. Action No. HBC0119 of 2001S - unreported, Scott J), and The Reverend Akuila Yabaki & Ors v The President of the Republic of the Fiji Islands and Anor. (Civ. Appeal No. ABU0061 of 2001S - unreported, Lordships Barker, Ward and Davies).
He then refers to George Speight’s conviction for treason on 20 February 2002 and the overt acts of treason to which he pleaded guilty.
With reference to the definitions of the words “mutiny”, “insurrection and “rebellion” and “usurped power” he submits that the actions of Speight and his supporters on 19 May 2000:
(i) constituted collective defiance or disregard of authority or refusal to obey authority: See Overt Acts 1, 2, 3 and 5.
(ii) constituted an organised and violent uprising with the object of trying to overthrow or supplant the government as its main purpose. These actions were a rebellion or, at the very least, insurrection. George Speight’s expressed intent was to force a change of government and did in fact attempt to supplant the government by forming an illegal government styled the ‘Taukei Civilian Government’ by acts of violence: See Overt Acts 1, 2, 3, 4 and 5.
(iii) Arrogated himself the power of lawmaking that properly belonged to the People’s Coalition Government: See Overt Acts 3, 4 and 5.
On these submissions he urges the Court to find any one of the following: mutiny, insurrection, rebellion or usurped power in terms of the said Clause 5.1(b) of the Policy. He says that cases of Suresh Kumar Singh (supra) and Yatulau Company Ltd v Sun Insurance Ltd (Action No. HBC0380 of 2000) did not decide as alleged by the plaintiff that what happened in Suva City on 19 May 2000 was a riot and not ‘rebellion’ or ‘insurrection’ or ‘usurped power’. He says that those cases can be distinguished from the present case. In Yatulau he says that there was no issue of any exclusion clause. In Suresh Singh he says that the exclusion provision differed markedly from those in the present action.
Counsel further submits that it is a fundamental rule of insurance law that the insurer is only liable for losses proximately caused by the peril covered by the policy (MacGillivray on Insurance Law 9th Ed. 451). But then he submits that the word ‘indirectly by’ in Policy 325 displaces the operation of proximate clause rule.
The facts and circumstances relating to the events of 19 May 2000 are contained in the various affidavits filed by the plaintiff and defendant.
Mr. Haniff refers to parts of the said affidavits and also to the affidavit evidence of James Datta and Imraz Iqbal Ali.
Mr. Haniff outlined what happened at Government House Gate and at Parliament. It was after 11.30 a.m. that shop and businesses in Suva City “became a free for all, the situation degenerated in chaos with independent looting taking place” after the insurrection. It was at 1.30 pm that the plaintiff’s premises were looted and set on fire.
Counsel submits that ‘the inference to be drawn from the events is that the happening of the coup at the very least indirectly gave rise to the situation in which the looting could occur’.
He further submits that the evidence ‘would leave it quite unreasonable to conclude other than that the riot was an indirect consequence of the tragic and horrible things that has happened and were happening in Parliament’.
Mr. Haniff relied heavily on the case of Grell-Taurell Ltd v Caribbean Home Insurance Co. Ltd & Ors. [2002] Lloyds Rep. 655 C.A. Trinidad, Spinney’s case (infra) and Pillay v General Insurance Co. [1985] LRC (Comm) 162, Supreme Court of Seychelles.
Counsel submits that the looting in Suva City started after the news of the insurrection spread in the city.
He wants the Court to find that the damage suffered by the plaintiff was at least indirectly caused by, or resulted from insurrection, mutiny, rebellion or usurped power. Therefore he says that the case falls within exclusion 5.1(b) of the Policy and the defendant is not liable to indemnify the plaintiff under the Policy.
On “terrorism” contrary to what Mr. Patel says the defendant’s counsel states that there is no inconsistency between the terrorism cover and clause 5.1(b). The difference is that the exclusionary items specified in 5.1(b) allowed political ends by force and not by fear.
The defendant’s counsel says that the cover is in the following terms:
“The Policy extends to cover damage to Insured Property directly caused by Sabotage or Terrorism.
Terrorism means use of violence for political ends and includes any use of violence for the purpose of putting the public in fear.”
Further, on Clause 5.1(b) counsel submits as follows:
“The insurance does not cover any loss or damage occasioned by or through or in consequence of or indirectly by, any of the following occurrences, namely:...” If the Defendant proves that the damage was caused indirectly by the mutiny, insurrection, rebellion or usurped power then the Plaintiff cannot recover.
In any event, there is no evidence before this Court that establishes that the actions of Speight and his supporters comprised “acts of terrorism”. The evidence before the Court clearly establishes that Speight and his supporters acted to overthrow the lawful Government, and thereby committed at least insurrection. In particular there is no evidence that establishes that Speight and his supporters committed acts intended or calculated to create a state of terror in the minds of particular persons, or a group of persons or the general public.
Similarly there is no evidence before the Court to conclude that the actions of the looting crowd constituted acts of terrorism. No evidence establishes that the looters “used violence for the purpose of putting the public or a section of the public in fear and/or for political ends”.
Further, it is irrelevant whether the conduct of Speight and his followers comprised “acts of terrorism”. It is not suggested by the Plaintiff that George Speight and his supporters were the direct cause of the damage; indeed, the Plaintiffs have been at pains to disassociate the looters from Speight and his supporters. The onus is on the Plaintiff to prove that the people who directly caused the damage, i.e. the looters, were committing acts of terrorism. There is no evidence before the Court that establishes the looters were terrorists.
He concludes by saying that section 25 of the Insurance Law Reform Act 1996 has no application to the instant case.
Counsel’s argument is that section 25 as it stands is incomprehensible because there are words that are clearly missing, the end result being that the section is incapable of being assigned any sensible meaning.
He further submits that the plaintiff is not entitled to raise this issue without pleading it.
Mr. Haniff refers to the leading case on the interpretation of s11 in the New Zealand case of New Zealand Insurance Co. Ltd v Harris [1989] NZCA 384; [1990] 1 NZLR 10. The said section 11 is similar to the said section 25. He sets out in his submission the two step inquiry which the Court of Appeal held that s11 contemplates where the contract of insurance excludes or limits the insurer’s liability on the happening of certain events or the existence of certain circumstances.
Counsel says that there is no evidence before the Court to make a finding on either of the two steps prescribed by the New Zealand Court of Appeal.
Therefore, he says that the plaintiff has not made out any case for relief under s.25 of the Insurance Law Reform Act 1996.
D. PLAINTIFF’S SUBMISSION
The learned counsel for the plaintiff, Mr. B.C. Patel submits that under Or 28 r 2(4) of the High Court Rules 1988, the defendant was required to disclose its defence. All it did in support of its case on exclusion clause 5.1(b) is produce two ‘Fiji Sun’ newspaper articles exhibited to Fimone’s affidavit with bold assertions, without supporting evidence by Fimone. Counsel says that these are hearsay and little or no weight should be given for the purpose of proving causation.
Mr. Patel submits that the fact of Speight’s conviction on 18 February 2002 on his own plea of guilty do not establish causal connection between the actions of Speight and the plaintiff’s loss.
Counsel submits that (as in p11 of plaintiff’s submission):
The eleventh overt act shows that Speight pleaded guilty to “unlawfully incite, aid and abet, counsel and procure various acts of looting, rioting and breach of the peace by other persons unknown in the course of an armed insurrection”. George Speight did not plead guilty to all looting in Fiji on 19 May 2000 but only to some of it (“various acts of looting”). There is no evidence that “the various acts of looting” included all the looting in Suva city or more importantly that it included the looting at Plaintiff’s shop. It doesn’t state that the looting to which Speight pleaded guilty included any or all the looting in Suva city. No inference can be drawn to link the Plaintiff’s loss.
Mr. Patel submits that the evidence before this Court supports the finding in the two High Court insurance claim cases of Suresh Kumar Singh and Yatalau Company Ltd (supra) that there was a riot in Suva on 19 May 2000 and that the rioters looted the plaintiff’s shop. There is no evidence to support a finding that one of the excluded events occurred on 19 May 2000 or that there was any causal connection between an excluded event and the plaintiff’s loss.
Counsel referred to the affidavit evidence of Mr. James Datta and Mr. Imraz Iqbal Ali which revealed, inter alia, that there were three separate groups: the Speight group, the marchers and the rioters and looters. The riot and looting started at Tappoo’s shop at 1.00 pm and that rioters and looters moved to DB Diamond store and then around Nina Street including the plaintiff’s shop.
Mr. Patel submitted that the excluded events do not apply in this case. He said that the rioters and looters were a different group from Speight and his supporters. There is no evidence that any of them have been charged for treason. There is no evidence of any causal connection between the rioters and Speight group and other groups to make them part of the events that occurred in Parliament. He submits that whatever occurred elsewhere in the city was merely background, having no demonstrated causal link or relevance to the plaintiff’s loss.
Act of terrorism
As far as terrorism is concerned counsel says that a specific terrorism cover was taken out by the plaintiff. Such cover is normally not provided by the standard policy wording.
The “terrorism” cover insures against loss or damage caused by “use of violence for political ends and includes any use of violence for the purpose of putting the public or any section of the public in fear”.
s.25 of Insurance Law Reform Act 1996
Counsel submits that if there was a causal connection between the excluded event and the loss then evidence shows, inter alia, that such connection was tenuous.
Accordingly, he says, the Court can grant relief against the exclusion clause in the policy under s.25 of the Insurance Law Reform Act 1996.
Mr. Patel dealt with the affidavit evidence produced by the defendant.
He submits that the defendant relies on the two newspaper articles referred to in the affidavit of Fimone. These articles, he says, do not establish causal connection.
Counsel submits that as to the article of 20 May 2000 the reporter Ms Hicks has rejected Fimone’s statement. There is no suggestion in that article that the March and the subsequent disturbances comprised a well “orchestrated plan” to topple the Government of the day.
He further submits that there is no causal connection between the excluded event and the loss in Tora’s statement of 2 August 2000 when he is reported as saying that “the march was used as a decoy for the armed overthrow of the Government of the day”. It is made clear when Tora said in the same article that “they did not have a hand in the rioting and burning that followed”.
E. CONSIDERATION OF THE ISSUES
(i) Issues for determination
The issues for Court’s determination are as follows (as seated in the Pre-trial Conference Minutes):
Did any of the excluded events occur on 19 May 2000, and if so, which one and where?
Was the Plaintiff’s loss or damage “occasioned through or in consequence or indirectly of” any of the excluded events?
If the actions of George Speight and his group who took over Parliament and held the Prime Minister and others hostages “indirectly occasioned” the loss to the Plaintiff then was that loss also caused by an “act of terrorism” as defined in the policy?
Does the terrorism cover provided by the specification clause of the policy prevail over the printed exclusion clause 5.1(b)?
If the Plaintiff’s loss or damage was occasioned indirectly by an excluded event then should the Plaintiff be granted relief under s.25 of the Insurance Law Reform Act 1996 because such excluded event was not the proximate cause and had not materially contributed to that loss or damage?
Should the Court order payment of the admitted amount of $2,445,203.00?
Should the Defendant pay interest, and if so, at what rate and for what period?
(ii) Burden of Proof
The burden of proof is on the defendant to prove that the exclusion clause applies to this case.
The defendant is required to, on a balance of probabilities, prove that the following two limbs of the exclusion clause are satisfied:
(a) that there was a mutiny, rebellion, revolution, insurrection or usurped power in Parliament at 1.30 pm on 19 May 2000; and
(b) that the Plaintiff’s loss or damage was “occasioned by or through or in consequence or indirectly of” one or more of those occurrences.
(iii) Standard of Proof
In this case in so far as it is relevant to this action, the defendant states that one of the excluded events of mutiny, revolution, rebellion, insurrection or usurped power occurred in Suva on 19 May 2000.
These are serious allegations and hence strong evidence is required to be produced to prove even on a balance probabilities.
The following passage from the judgment of Lord Nicholls in Re H (Minors) [1996] AC 563 at 586 sums up the requirements very succinctly:
“The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event was more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability. Fraud is usually less likely than negligence. Deliberate physical injury is usually less likely than accidental physical injury. A stepfather is usually less likely to have repeatedly raped and had consensual oral sex with his under age stepdaughter than on some occasion to have lost his temper and slapped her. Built into the preponderance of probability standard is a generous degree of flexibility in respect of the seriousness of the allegation.
Although the result is much the same, this does not mean that where a serious allegation is in issue the standard of proof required is higher. It means only that the inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred. The more improbable the event, the stronger must be the evidence that it did occur before, on the balance of probability, its occurrence will be established. Ungoed-Thoms J. expressed this neatly in re Dellow’s Will Trusts [1964] 1 W.L.R. 451, 455: ‘The more serious the allegation the more cogent is the evidence required to overcome the unlikelihood of what is alleged and thus to prove it’ .................. This approach also provides a means by which the balance of probability standard can accommodate one’s instinctive feeling that even in civil proceedings a court should be more sure before finding serious allegations proved than when deciding less serious or trivial matters.”
(iv) Findings
I have set out hereabove in considerable detail the helpful submissions made by both counsel.
I must say at this juncture that bulk of the arguments which have been so well and comprehensively put forward by Mr. Patel are accepted by me in preference to those of Mr. Haniff. Hence there is no need for one to repeat what Mr. Patel said but to summarize their comment on them and make some findings on the issues.
The learned counsel for the defendant, Mr. Haniff did put up a good fight in support of his client’s case. However, on the affidavit evidence produced he was having an uphill battle.
From the affidavit evidence before me I find that the defendant has not discharged the burden of proof that lies upon it.
The main issue in this case is whether the exclusion clause 5.1(b) of the Policy applies or not.
None of the occurrences, or any one of them, namely, mutiny, revolution, rebellion or insurrection or usurped power occurred in this case to enable the defendant to escape liability under the Policy.
There was no mutiny. In R v Grant [1957] 2 All E.R. 694 at 696 Lord Goddard referred to the definition of “mutiny” in Manual of Military Law (7th Ed) which is as follows:
“... ‘mutiny’ implies collective subordination or combination of two or more persons to resist or to induce others to resist military authority.”
Further in Pillay v General Insurance Co [1985] LRC (Comm) 162 at 165 the Supreme Court of Seychelles adopted the definition of “mutiny” in the Shorter Oxford Dictionary, namely;
“means open revolt against constituted authority; revolt of soldiers or sailors against their officers. To rise in revolt against; to refuse submission to the lawful command of a superior, especially in the military and naval service”.
There is no evidence here of refusal to obey command; indeed there is no evidence that a command was issued.
On “revolution”, in Chandrika Prasad v AG, FCA Civil Appeal No. 78 of 2000, the Fiji Court of Appeal said this of a “revolution” (decision March 2001):
We consider that there was a purported overthrow of the Constitution and its replacement by the establishment, first of military rule and, secondly, of the Interim Civil Government Whether what happened can be characterised as a “revolution” or not is probably a matter of choice of words. We are attracted to the definition of “revolution” in Brookfield (op. Cit.) at 13 (F.M. Brookfield’s Waitangi & Indigenous Rights Revolution, Law and Limitation (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.”
In Chandrika Prasad (supra) the Court went on to say:
“Not all revolutions are 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.
In this case, there was a purported change in the legal order when the Commander decided to abrogate rather than suspend the Constitution on 29 May; he reinforced this change when, he later chose to install the Interim Civilian Government which has purported to govern ever since... ...”
From these statements it can be seen that there was no revolution on 19 May 2000. There is no evidence that Speight and his group had replaced or attempted to replace the Constitution on 19 May 2000.
On ”rebellion” and “insurrection”, in National Oil Co of Zimbabwe v. Sturge [1991] 2 Lloyds Rep. 281 at 282 Saville J said
“Rebellion” and “insurrection” have somewhat similar meanings to each other. To my mind, each means that organized 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 organization and size than “rebellion”.
Also, in Lindsay and Pirie v General Accident, Fire and Life Assurance Corp. Ltd [1914] SAR 574 the South African Court of Appeal held that insurrection meant a rising of the people in open resistance against established authority with the object of supplanting it.
On “military” or “usurped power”, in Curtis & Sons v. Mathews (1919) 1 K.B. 425, Bankes L.J. observed (p. 439) that:
“Usurped power seems to me to mean something more than the action of an unorganised rabble. How much more I am not prepared to define. There must probably be action by some more or less organised body with more or less authoritative leaders.”
As stated in Spinney’s case [Spiney’s (1948) Ltd v Royal Insurance Co. Ltd (1980) 1 Lloyd’s Report 406 at p.439] to constitute ‘usurped power’ it “was the arrogation to itself by a group of the proper law-making and law-enforcing functions of the State”. No such situation existed in this case. I agree with Mr. Patel that the critical time for determination of the question is the time of rioting and looting of the plaintiff’s shop, i.e. at 1.30 pm on 19 May 2000. At that time the only event that occurred was the takeover of Parliament and holding the Prime Minister and certain Parliamentarians hostage. Speight and his supporters had not at that time or any time “arrogated to themselves” the function of the State referred to above to have “usurped power”.
As submitted by Mr. Patel, for the plaintiff causation in fact must be decided in the light of all the circumstances and probabilities of the particular case. Causation in contract is analogous to that in tort (Chappell v Hart [1998] 156 ALR 517 at 533 Gummow J).
As to proof of sufficient causal connection the following quotation from the judgment of Mustill J in Spinney’s [1948] Ltd v Royal Insurance Co (supra) (where there was a reverse burden of proof) I consider pertinent to cite in considering the issues before me:
“I now turn to the question whether there was a sufficient casual connection between the operation of the excepted perils and the losses which I have described. The type of connection required is defined by the causation clause, and the mode of proof by the reverse burden clause.”
It is important to note in this context the decisions in the two High Court cases, already referred to hereabove. They are Yatulau Company Ltd and Sun Insurance Company Ltd (Civil Action No. HBC0380 of 2000 - 2 July 2001 judgment - Byrne J) and Suresh Kumar Singh and Sun Insurance Company Ltd (Civil Action No. HBC 382 of 2000S judgment 24.7.01 – Scott J). The cases relate to events of 19 May 2000.
In Yatulau Company, Byrne J. dealt with the exclusion clause similar to the one before me. There the Court found that the damage caused there was through a ‘riot’.
In Suresh Kumar Singh case, Scott J found that there was no evidence before him ‘that the looting which damaged the plaintiff’s premises was “part of an attempted coup”. His Lordship agreed with Byrne J that the damage was as a result of rioting and civil commotion.
His Lordship Scott J (now Judge of Appeal) summed up the position very well and I adopt it here. He said:
“In particular, there is nothing to show that the looting was planned or orchestrated by Speight or any of his lieutenants. While doubtless some of the looters may have sympathised with Speight the looitng was directed not at the organs of the State such as government offices or agencies but was directed at private businesses. The main object of the looting as was obvious from the television footage was to steal as much as possible as quickly as possible whether what was stolen was gold watches or frozen chickens.”
On the affidavit evidence before me and on the authorities I find that there was no causal connection between the action of Speight and his group and the loss suffered by the plaintiff.
I hold that this was a clear cut case of ‘riot’ as held in Yatulau (supra). There Byrne J, referred to the case of Field and Others v The Receiver of Metropolitian Police [1907] UKLawRpKQB 145; (1907) 2 K.B. 853 at 860 where the Court of Appeal held that in order to constitute a riot five elements are necessary. They are:
“1. number of persons three at least;
I find that the proximate cause of the loss to the plaintiff’s shop was the riot and looting and not the event in Parliament. There is no causal connection between those who rioted and looted the plaintiff’s shop and Speight and his supporters to make them part of the event which occurred in Parliament or to be indirectly connected to the events in Parliament. It is abundantly clear and I so find that there were three separate groups, viz. Speight group, the marchers and the rioters and looters. As put by Mr. Patel and I agree that the mere coincidence in point of time is insufficient to characterize the events at the plaintiff’s shop as having a similar character as those at the Parliament.
A letter dated 2 October 2001 from the Assistant Commissioner of Police – Commercial Crime addressed to Parshotam and Co. Solicitors in regard to ‘Looting of Tappoo’s Store’ on 19 May 2000 strengthens the plaintiff’s case clarifying as to which group was involved in the looting and rioting. The letter states as follows:
We refer to your letter of 26/3/01 and other communications and confirm that following extensive investigations the police are satisfied that the offences including rioting and looting etc that occurred at the Suva shop of Tappoo Ltd on 19/5/00 were not the direct or indirect result of any organised political nature of flowing from the events in Parliament on that day.
The police are satisfied that the motives behind the looters were for their own personal gain rather then any political cause. Some looters have been charged and convicted.
F. CONCLUSION
The defendant relies entirely on whether the damage suffered by the plaintiff was indirectly caused by anyone of the exclusionary items, namely (i) mutiny, (ii) insurrection, (iii) rebellion and (iv) usurped power.
Having found as already stated hereabove and particularly having found that the damage suffered by the plaintiff was as a result of riot and looting, the exclusion clause does not apply.
This interpretation of the exclusion clause in the Policy is based on facts and law and also on the authorities referred to hereabove.
Having found as fact as I have done, no question of considering the matter of ‘terrorism’, of which both counsel spoke, arises. The finding that it was riot which led to the damage caused to plaintiff, answers the issues for determination by the Court as stated already earlier in this judgment.
In the outcome, for the above reasons and on the interpretation of the exclusion clause 5.1(b) of the printed conditions in Policy 325 and exclusion clauses in Policies 326 and 332 arrived at by consideration of all the affidavit evidence as presented to this Court and on the authorities, the defendant is liable to indemnify the plaintiff for the loss caused by malicious act, theft and fire which arose out of a riot in the City of Suva on 19 May 2000.
As per GAB Robins New Zealand Ltd Report dated 17 March 2003 being annexure PF1 to Peter Fimone’s affidavit sworn on 20 March 2003 the net loss is stated as $2,245,203.00 (it should be $2,445,203.00 as there is an addition error). This amount the defendant has admitted.
The Report states:
Our calculation of the loss is as follows. Please note that our figures are inclusive of VAT where we consider insurers are required to pay VAT in settlement of the claim.
Building Claim $546,107
Contents Claim $250,000
Special Limits Under Material Damage
For Claim Preparation $ 10,000
Stock Claim $750,000
Business Interruption $-889,596
Total $2,445,703
Less Deductible Under Material Damage Policy $500
Total Net $2,245,203
The “final” assessment report of Peter Faite Loss Management Ltd is that the loss is in excess of $3.4 million.
However, since the defendant has admitted $2,445,203.00, the plaintiff is entitled to judgment for that amount.
The plaintiff is entitled to interest pursuant to section 34 of the Insurance Law Reform Act 1996 from a date when it was unreasonable for the insurer to withhold payment, and such interest is payable to the date of payment of the judgment sum.
The said section provides:
34. – (1) Where an insurer is liable to pay to a person an amount under a contract of insurance or under this Act in relation to a contract of insurance, the insurer is also liable to pay interest on the amount to that person in accordance with this Section.
(2) The period in respect of which interest is payable is the period commencing on the day as from which it was unreasonable for the insurer to have withheld payment of the amount and ending on whichever is earlier of the following days:
(a) the day on which the payment is made;
(b) the day on which the payment is sent by post to the person to whom it is payable.
(3) The rate at which interest is payable in respect of a day included in the period referred to in sub-section (2) is the rate that is prescribed by regulation.
Under Regulation 2(1) of Insurance Law Reform (Interest Rates) Regulations 2004 (Legal Notice No. 1 of 2004 dated 29 December 2003) the rate of interest is stated. It provides:
2. – (1) For the purpose of section 34(2) of the Insurance Law Reform Act 1996, the interest rate payable in respect of each day included in a period referred to in that section is 10% per annum.
This action relates to the year 2003 and the above regulation came into force in 2004. In the absence of prescribed interest in 2003 the plaintiff has asked for 9.25 % per annum interest which I allow.
G. ORDERS
It is ordered that the defendant pay to the plaintiff the admitted sum of $2,445,203.00 with interest thereon at 9.25% from 19 September 2000 to the date of payment And it is further ordered that the defendant pay to the plaintiff costs which is to be taxed unless agreed. Judgment is therefore entered for the plaintiff accordingly.
I shall now hear counsel to set a date for hearing to determine the balance of quantum claimed.
D. Pathik
Judge
19 May 2004
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/fj/cases/FJHC/2004/353.html