Bedfordshire Police Authority v Constable [2009] EWCA Civ 64

[2009] EWCA Civ 64Case No A3/2008/1609
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
COMMERCIAL COURT
THE HONOURABLE MR JUSTICE WALKER
2008 FOLIO NO. 27
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 12/02/2009
Before
THE RIGHT HONOURABLE LORD JUSTICE LONGMORETHE RIGHT HONOURABLE LORD JUSTICE HOOPERTHE RIGHT HONOURABLE SIR PETER GIBSON
Between
BEDFORDSHIRE POLICE AUTHORITYRespondentCONSTABLE (SUED ON HIS BEHALF & ON BEHALF OF ALL OTHER MEMBERS OF SYNDICATE 386 AT LLOYD’S)Appellant
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr Gavin Kealey QC & Mr Andrew Wales (instructed by Reynolds Porter Chamberlain LLP) for AppellantMr Colin Edelman QC & Mr Andrew Burns (instructed by Eversheds LLP) for RespondentHearing Hearing dates : 21 st& 22 nd January 2009
Judgment

Introduction

[1]The issue in this appeal is whether a police authority’s obligation, under the provisions of the Riot (Damages) Act 1886, to compensate property owners for damage to their property caused by a riot is covered by the public liability section of an insurance policy, which promises to indemnify the assured authority in respect of sums which the authority “may become legally liable to pay as damages for accidental damage to property arising out of the business” of the authority. This requires an analysis of the insurance policy and of the Riot (Damages) Act 1886 (“the 1886 Act”) in the light of what happened at Yarls Wood Detention Centre (“Yarls’ Wood”) in February 2002.[2]Yarls’ Wood is in the geographical area of the Bedfordshire Police Authority (“the BPA”) and is a contracted-out immigration detention centre operated by Yarl’s Wood Immigration Ltd (“YWIL”) who, with the agreement of the Home Secretary, sub-contracted their obligations to GSL UK Ltd (“GSL”), a company formerly known as Group 4. Persons detained at the centre are held there pursuant to powers contained in Schedule 2 of the Immigration Act 1971 which entitles the Home Secretary to detain persons pending decisions to give or refuse them leave to enter the United Kingdom and pending decisions about their removal from the United Kingdom. On the night of 14th February 2002 there was a major disturbance at the Centre which caused property to be destroyed by “persons riotously and tumultuously assembled together”, to use the wording of the 1886 Act. Almost half the premises were destroyed by fire and some millions of pounds of damage resulted. YWIL and GSL have brought claims for compensation against the BPA pursuant to the 1886 Act. The present status of those claims is that they have been rejected first by the BPA and now by Beatson J mainly on the basis that the 1886 Act, on its true construction, confers rights on private citizens in relation to their property, not on those who were themselves responsible for maintaining law and order at the property. Permission to appeal has been given. Although the BPA has so far prevailed, they consider it would be helpful for the position in relation to their own insurers to be resolved before deciding whether and how to react to YWIL and GSL’s appeal.

The Insurance

[3]The defendant liability insurer is an excess insurer who has provided insurance in the same terms as the underlying cover. That cover defines the Assured as the Bedfordshire Police Authority and the Chief Constable of the Bedfordshire Constabulary and defines Business as:- “the usual activities of the ASSURED as a Police Authority which is held to include” and then a number of incidental examples are set out.[4]Section 1 of the Casualty segment of the policy is the Public Liability section and cover is there afforded in the following terms:- “The COMPANY will indemnify the ASSURED in respect of all sums which the ASSURED may become legally liable to pay as damages and claimants’ costs and expenses for: a) accidental Injury to any person (other than an EMPLOYEE if such Injury arises out of and in the course of employment by the ASSURED). b) accidental DAMAGE to PROPERTY: i) not belonging to nor in the custody or control of the ASSURED. ii) not in the custody or control of an EMPLOYEE. iii) which has been the subject of illegal distraint. ........ d) accidental DAMAGE to buildings including their fixtures and fittings which are leased, hired or rented by the ASSURED but excluding: i) DAMAGE to their contents. ii) Liability assumed by the ASSURED under a tenancy or other agreement which would not have attached in the absence of such agreement. iii) The first £100 of each claim for DAMAGE unless caused by fire or explosion. occurring within the Geographical Limits during the Period of Insurance arising out of the BUSINESS.” i) not belonging to nor in the custody or control of the ASSURED. ii) not in the custody or control of an EMPLOYEE. iii) which has been the subject of illegal distraint. ........ i) DAMAGE to their contents. ii) Liability assumed by the ASSURED under a tenancy or other agreement which would not have attached in the absence of such agreement. iii) The first £100 of each claim for DAMAGE unless caused by fire or explosion.

The 1886 Act

[5]The long title of the 1886 Act in its original form was "An Act to provide Compensation for Losses by Riots." This preceded a preamble in the following terms:
“Whereas by law the inhabitants of the hundred or other area in which property is damaged by persons riotously and tumultuously assembled together are liable in certain cases to pay compensation for such damage, and it is expedient to make other provision respecting such compensation and the mode of recovering the same:”
[6]Section 1 sets out the short title:
"The Riot (Damages) Act 1886."
[7]Section 2 has a marginal note, "Compensation to persons for damage by riot". As amended it reads: 2. - (1.) Where a house, shop, or building in a police area has been injured or destroyed, or the property therein has been injured, stolen, or destroyed, by any persons riotously and tumultuously assembled together, such compensation as herein-after mentioned shall be paid out of the police fund of the area to any person who has sustained loss by such injury, stealing or destruction; but in fixing the amount of such compensation regard shall be had to the conduct of the said person, whether as respects the precautions taken by him or as respects his being a party or accessory to such riotous or tumultuous assembly, or as regards any provocation offered to the persons assembled or otherwise. (2.) Where any person having sustained such loss as aforesaid has received, by way of insurance or otherwise, any sum to recoup him, in whole or in part, for such loss, the compensation otherwise payable to him under this Act shall, if exceeding such sum, be reduced by the amount thereof, and in any other case shall not be paid to him, and the payer of such sum shall be entitled to compensation under this Act in respect of the sum so paid in like manner as if he had sustained the said loss, and any policy of insurance given by such payer shall continue in force as if he had made no such payment, and where such person was recouped as aforesaid otherwise than by payment of a sum, this enactment shall apply as if the value of such recoupment were a sum paid.[8]Section 3 has a marginal note, "Mode of awarding compensation". It reads: 3. – (1.) Claims for compensation under this Act shall be made to the compensation authority of the police area in which the injury, stealing, or destruction took place, and such compensation authority shall inquire into the truth thereof, and shall, if satisfied, fix such compensation as appears to them just. (2.) A Secretary of State may from time to time make, and when made, revoke and vary regulations respecting the time, manner, and conditions within, in, and under which claims for compensation under this Act are to be made, and all claims not made in accordance with such regulations may be excluded. Such regulations may also provide for the particulars to be stated in any claim, and for the verification of any claim, and of any facts incidental thereto, by statutory declarations, production of books, vouchers, and documents, entry of premises, and otherwise, and may also provide for any matter which under this Act can be prescribed, and for the police authority obtaining information and assistance for determining the said claims. Regulations have been made under sub-section (2) and include the stipulation that any claim for compensation should be made within 14 days of the loss or damage to which it relates.[9]Section 4 has a marginal note, "Right of action to person aggrieved." It reads: 4. – (1.) Where a claim to compensation has been made in accordance with the regulations, and the claimant is aggrieved by the refusal or failure of the compensation authority to fix compensation upon such claim, or by the amount of compensation fixed, he may bring an action against the compensation authority to recover compensation in respect of all or any of the matters mentioned in such claim and to an amount not exceeding that mentioned therein, but if in such action he fails to recover any compensation or an amount exceeding that fixed by the compensation authority, he shall pay the costs of the compensation authority as between solicitor and client.[10]The insurers of the primary layer of the public liability section of the insurance have accepted that the policy covers liability under the 1886 Act. The excess insurers have not. Walker J has held that the obligation of the police authority to pay compensation under the 1886 Act is the sort of liability which the parties would have expected to be covered by a public liability policy and that, despite the requirement that the legal liability must be a “liability to pay as damages” that requirement was satisfied. He also held that the damage at Yarl’s Wood and, so far as relevant, the liability for that damage arose out of the business of the authority. The insurers of the excess layer, syndicate 386 at Lloyd’s, now appeal with the permission of the judge.[11]In the course of his judgment, the judge concluded that the obligation of the police authority to pay compensation under the 1886 Act stemmed from the idea that the local police were responsible for failing to control riots within their area. Although the obligation to pay compensation was a strict liability (in the sense that it did not matter whether or not the police had neglected their duty or that, however diligent they may have been, the riot could not have been prevented and damage would inevitably have occurred) the reason why that strict liability was imposed on the police authority rather than on the community at large, whether the local authority or central government, was due to the notional responsibility of the police who had the duty of preserving law and order. The judge buttressed this conclusion by reference to the original liability of the hundredors for preserving law and order pursuant to the Statute of Winchester of 1285 and subsequent statutes, but for present purposes it is only necessary to note that one of the main purposes (if not the main purpose) of the 1886 Act was to transfer the obligation to pay compensation from the hundred to what was then called the “police rate” of the “police district” in which the relevant property had been damaged. Since the Police Acts 1994 and 1996 these phrases have become the “police fund” and the “police area” respectively.[12]Happily for non-historians the notional responsibility of the police has been repeated in modern authority and it is sufficient to refer to Dwyer v Metropolitan Police District Receiver [1967] 2 QB 970 where the owner of a jewellery shop claimed to recover compensation from the police for damage to his shop in a smash and grab raid. Since there were more than 3 robbers, the police accepted that there had been a riot but defended the claim on the basis that the property had not been damaged by “persons riotously and tumultuously assembled” within the wording of the 1886 Act. The claimant said that the word “tumultuously” added nothing to riotously or that, if it did, it should be read disjunctively. Lyell J held that the requirement of “tumultuousness” did add something to the requirement of “riot” and he defined it by saying that the assembly should be of considerable size and an assembly in which the persons taking part indulged in agitated movement. In coming to this conclusion he asked himself the question why victims of riot who had suffered injury or damage to their property were made a special case at a time when victims of crime were not generally compensated for their injuries. He answered it in this way at page 980:- “If a crowd of people collect in angry and threatening fashion this should become obvious to the local forces of order, and it would then become their duty to prevent the crowd from becoming a riot. This is a duty which has been recognised for centuries, and which until the 19th century was put upon the local administrative area, the hundred or wapentake, or whatever name it might be called; and there was a duty upon them to compensate for damage which was done by persons assembled riotously and tumultuously. The Act of 1886, in fact, did no more than modernise the mode of obtaining compensation and transferred the burden from the inhabitants of the hundred or wapentake to the local police authority. There is nothing secret or furtive about a crowd of people who are acting riotously and tumultuously. It seems to me that the right to compensation from public funds was given because public authority had failed to protect the public who were menaced by a threat which was, or ought to have been, obvious to the forces of law and order as they existed from time to time. In my judgment, the word “tumultuously” was added to “riotously” for the specific reason that it was intended to limit the liability of compensation to cases where the rioters were in such numbers and in such state of agitated commotion, and were generally so acting, that the forces of law and order should have been well aware of the threat which existed, and, if they had done their duty, should have taken steps to prevent the rioters from causing damage.”[13]This analysis was approved by the Court of Appeal in Edmonds v East Sussex Police Authority 6th July 1988 of which we were shown a transcript. Kerr LJ (at page 7) described the judgment of Lyell J as “an admirable judgment” which he proposed to follow and he cited the above passage. Balcombe LJ, having agreed that the appeal should be dismissed, added:- “I would also like to express my complete agreement with the judgment of Mr Justice Lyell in Dwyer’s case.”

The arguments

[14]Mr Kealey QC for the insurers agreed that this court was bound to accept that a police authority’s obligation to pay compensation under the 1886 Act stemmed from the notional responsibility of the police to preserve law and order in their locality, but he pointed out that that was nowhere stated to be the case on the face of the statute. He argued:- i) the judge had created an unresolved tension in saying on the one hand that the obligation to pay compensation under the 1886 Act was a liability which the parties to the insurance contract would expect to be covered and, on the other, that the reason why the police authority was liable to pay sums “as damages” arose from a notional (and unexpressed) duty to preserve law and order. How could that be in the common contemplation of the parties when even a lawyer would only know it after reading Dwyer and Edmonds (and, if the judge was right, the Statutes of Westminster, the Riot Act of 1714 and the Remedies Against the Hundred (England) Act of 1827, the predecessors of the 1886 Act)? ii) The words “liable as damages” had a time-honoured history of more than a century starting with the Collision Liability Clause dealing with liability of a shipowner to pay damages to a vessel with which he had collided. Liability damages were not covered under the old Lloyd’s form and so a new clause (later incorporated in the Institute Time Clauses) evolved which the courts have interpreted in accordance with a lawyer’s understanding of “damages”. It did not include a debt; nor did it include a liability to pay expenses nor, indeed, did it include a contractual liability when it was incorporated in a public liability policy. Similarly it did not include a liability to pay compensation under the 1886 Act. It only included a liability in tort. When pressed as to whether that meant that the policy would only respond if the insured could point to a chapter in Clerk and Lindsell on Torts which dealt with the liability concerned, he gave a qualified assent to that suggestion citing the second footnote of the first edition of that noble work (1889) in which, after the authors had done their best to define what a tort is, they stated:- “The statutory remedy of an action against the police authority of district (sic) in respect of property damaged in riots which has been substituted for the old action against the hundredors … stands outside this classification altogether.” Mr Kealey’s qualification was merely that one could imagine a foreign liability which might not be the same as a tort in English law but even then it would have at least to be similar.[15]In any event the damage did not arise out of the business of the police authority and was not recoverable for that reason also.

Approach to Construction

[16]In commercial cases of this kind it is helpful to have in mind dicta of Clarke LJ (as he then was) in two cases. In MDIS Ltd v Swinbank [1999] 2 All ER (Comm.) 722, 728, he said “…in any process of construction it is appropriate to take the language of the particular clause as the starting point. It is, however, not in dispute that the words used must be considered in the context of the particular clause as a whole and that the clause must in turn be considered in the context of the policy as a whole, which must in its turn be set in its surrounding circumstances or factual matrix. Moreover, as Lord Hoffmann pointed out in the now well-known case of Investors Compensation Ltd v Hopkin & Sons (a firm), Alford v West Bromwich Building Society, Armitage v West Bromwich Building Society [1998] 1 All ER 98 at 114, [1998] 1 WLR 896 at 912-913 interpretation is the ascertainment of the meaning which the document would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract, and the meaning of the document is what the parties using the relevant words against the relevant background would reasonably have been understood to mean.” Secondly in Sunport Shipping v Tryg-Baltica International (UK) Ltd [2003] EWCA Civ 12; [2003] 1 Lloyds Rep 138, 145 he said:- “…the court is trying to ascertain the intention of the parties in using the expression deployed in the contract. Where a contract has been professionally drawn, as in the case of the Institute Clauses, the draftsman is certain to have in mind decisions of the courts on earlier editions of the clause. Such decisions are part of the context or background circumstances against which the particular contract falls to be construed. If the draftsman chooses to adopt the same words as previously construed by the courts, it seems to me to be likely that, other things being equal, he intends that the words should continue to have the same meaning.”[17]Mr Kealey sought to rely both on the second dictum and the second half of the first dictum and submitted that the words “liable as damages” had a settled meaning and that reasonable persons, having the background knowledge reasonably available at the time of the contract, could not reasonably be contemplated as having any more knowledge of the 1886 Act than its existence. They could not contemplate that it was founded on an unexpressed notion of police responsibility for law and order which would only become apparent when reading decided cases on the Act and, possibly, its (lengthy) antecedent history.[18]This submission confuses two separate concepts. It may well be correct that “liable as damages” has the comparatively technical meaning that an English lawyer would give to the concept of “damages”. But if that is right it is then wrong to say that it must be construed against “reasonably available background knowledge” so as to limit the technical sense of the phrase under the consideration. We are already outside the principle that an ordinary term in a contract is to be construed against the commercial background or the “aim and genesis” of the transaction. A technical phrase has been used and it must be interpreted in its technical sense without regard to reasonably available background knowledge. If, therefore, the phrase “legally liable to pay as damages” has connotations which a reasonably experienced layman might not appreciate or if the phrase leads to an inquiry which only a lawyer or a historian would be qualified to conduct, the concept of limiting this inquiry to background knowledge reasonably available to an insurance broker or an insurer must necessarily fade into the background.[19]Nor do I, for my part, consider it unreasonable to start with the premise that a public liability policy will give indemnity in respect of liability to the public at large. Of course that will depend on the precise terms of cover and so the phrase “sums for which [the insured] may become legally liable to pay as damages” must now fall to be construed.[20]The 1886 Act says that the property owner is entitled to apply for and receive “compensation”. “Compensation” is itself an ambiguous word. On any view it can include what an English lawyer would call “damages” since it is the whole purpose of the law of tort to compensate persons who have suffered damage if there is legal liability for that damage. It is not enough to say that because the 1886 Act uses the term “compensation”, the person liable to pay compensation has not become liable to pay a sum payable “as damages”. When on a previous occasion, I was called on to construe the phrase “compensatory damages” I said that I could not sensibly differentiate between that phrase and “compensation” (Charterhouse Development (France) Ltd v Sharp [1998] Lloyds Rep IR. 266, 279). Now that I am called on to construe the phrase “liable to pay as damages”, I cannot see that the word “compensation” in the 1886 Act is a necessarily different concept. Nor did the draftsman see them as different concepts. He did after all give to the statute the short title The Riot (Damages) Act 1886, see section 1. The question whether the compensation payable to the police authority is a sum which they are “liable to pay as damages” must depend on the true nature of the liability as a matter of law.[21]This is shown by the authority on which Mr Kealey chiefly relied to demonstrate that the phrase “as damages” has the meaning which it would be given by an English lawyer. This was Hall Brothers SS Co Ltd v Young [1939] 1 KB 748. The claim was made under a marine insurance policy which incorporated the collision liability clause which for many years before and after 1939 was the first of the Institute Time Clauses (Hulls). It provided in its then form:- “And it is further agreed that if the ship hereby insured shall come into collision with any other ship or vessel and the assured shall in consequence thereof become liable to pay and shall pay by way of damages to any other person or persons any sum or sums in respect of such collision the undersigned will pay the assured such proportion of three-fourths of such sum or sums so paid as their respective subscriptions hereto bear to the value of the ship hereby insured, provided always that … in cases in which the liability of the ship has been contested, or proceedings have been taken to limit liability, with the consent in writing of the undersigned, they will also pay a like proportion of three-fourths of the costs which the assured shall thereby incur, or be compelled to pay; but where both vessels are to blame, then unless the liability of the owners of one or both of such vessels becomes limited by law, claims under this clause shall be settled on the principle of cross-liabilities …” This was followed by a proviso in these terms:- “Provided always that this clause shall in no case extend to any sum which the assured may become liable to pay or shall pay for removal of obstruction under statutory powers, for injury to harbours, wharves, piers, stages, and similar structures, consequent on such collision; or in respect of the cargo or engagements of the insured vessel or for loss of life or personal injury.”[22]The insured vessel, Trident, went to Dunkirk and engaged a French pilot whose pilot boat developed a fault in its steering gear which caused her to collide with Trident without Trident being in any way to blame. French law had a provision that damage sustained by the pilot boat in the course of pilotage operations was chargeable to the ship, unless the pilot had been guilty of gross negligence (“faute lourde”). The shipowner paid for the pilot boat’s damages and then claimed three-quarters of that sum from underwriters under the collision liability clause. Goddard J concluded that underwriters were not liable and said (1938) 43 Com. Cas. 284 at 290:- “It seems to me that, certainly so far as it is a matter of coming to a decision upon the evidence of the French lawyers, there is no conception of delict or tort in the cause of action which is given by the French Decree to the pilot boat. It seems to me that the probable theory which underlies the legislation, though it does not matter, when it is a matter of policy of law, what theory underlies the legislation, is that the pilot boat is rendering a service for the benefit of the ship which requires pilotage and, therefore, any damage which the pilot boat may receive in the course of rendering that service is to be regarded as an expense of the pilotage and is to be paid by the ship in just the same way as she would have to pay the pilotage dues, or whatever is the correct expression used in France, as remuneration for the service which the pilot renders.”[23]The shipowners appealed unsuccessfully. Sir Robert Aske KC submitted on their behalf that the liability under French law was just a case of liability in tort without fault like that of a common carrier or innkeeper under English law. He also cited the Air Navigation Act of 1920 which created a right to sue the owner of an aircraft if any part or thing fell from the sky and caused damage on the ground. Mr William McNair, following, compared the payment to the owners of the pilot boat to payments under the Workmen’s Compensation Acts. Sir Wilfred Greene MR disagreed, saying this (page 756-7) “… the clause does not extend to every pecuniary liability arising in respect of the collision but only to such liabilities as arise by way of damages. The word “damages” is one which to an English lawyer conveys a sufficiently precise meaning. This document is an English contract which falls to be construed according to English law. That does not, of course, mean that in its application to liabilities arising under foreign law (an application which the parties, of course, clearly contemplated as possible) the operation of the clause is to be excluded merely because some liability arising under foreign law as a result of a collision does not precisely coincide with the liability which is recognised in the Courts of this country. Nevertheless it is necessary in my opinion, in construing a document of this kind, to give to the word “damages” its ordinary meaning in English law. “Damages” to an English lawyer imports this idea, that the sums payable by way of damages are sums which fall to be paid by reason of some breach of duty or obligation, whether that duty or obligation is imposed by contract, by the general law, or legislation. Now, the measure of the duty, of course, will depend upon the particular law. A statute may impose an absolute obligation not to do certain things, and as the result of that the person injured by the doing of such a thing may have a right to damages. That is a question of the measure of the duty. An example which was referred to in the course of the discussion is to be found in the Air Navigation Act, 1920, s.9, sub-s I, under which damages are recoverable from the owner of aircraft who causes damage irrespective of negligence or intention: it is a standard of duty not to do certain things imposed by that statute. Looking at it from another point of view, there are certain classes of liability to make pecuniary payments which clearly fall outside the word “damages”. For instance, compensation paid under the Land Clauses Act or a matter of that kind is certainly not damages. Workmen’s compensation payments are certainly not damages in the ordinary sense of the word, and in spite of Mr McNair’s argument to the contrary I find it quite impossible to suppose that workmen’s compensation payments are included in the word “damages” in this clause. The foundation of that class of liability is something entirely different from the foundation of the liability which gives rise to a claim for damages.” So, insurers submit, payments under the 1886 Act are of a similar kind to the payment made by reason of French law in that case and are not recoverable under the terms of the public liability policy in this case.[24]It is true that there is some emphasis on the French liability arising without fault, but that was not determinative. Liability arose without fault under the Air Navigation Act 1920 (now re-enacted in the Civil Aviation Act 1982) as it can also arise under the Animals Act 1971 or the principle exemplified by Rylands v Fletcher. But these are liabilities for damages just as much as Sir Robert Aske’s examples of the common carrier and the innkeeper under the old common law. If I am asked whether the liability under the 1886 Act is a liability which falls to be paid “by reason of some breach of duty or obligation” in Sir Wilfrid Greene’s words, I can only say that it is. It is a liability that arises from the fact that the police are responsible for the preservation of law and order in the area of their police authority. In no way could the owners of Trident be said to have been responsible for the safety of the pilot boat; they just had to pay the cost of repair, if the boat suffered damage during pilotage, which it did.[25]It is this concept of responsibility which affords the distinction between sums for which an insured is liable in damages and sums for which he is not so liable. That is why Mr McNair’s comparison with workmen’s compensation could not carry the day; workmen’s compensation was in reality a form of insurance under which, if there was an accident, the employer paid half of the workmen’s wages (see Munkman, Employer’s Liability (2nd Ed., 1952 page 15). We were even told that in a case of injury by disease an employer was liable to pay compensation because he was the last employer, even if the industrial injury for which he was giving compensation had been caused while the workman had been working for previous employers. The last employer had no personal responsibility; he was nevertheless charged with paying the compensation.[26]Once one appreciates that the reason for the 1886 Act placing the burden of paying compensation to the victims of riot damage on the police authority is that the police are responsible for law and order and that they are (notionally) in breach of that responsibility, it seems to me, as an English lawyer, that compensation payable is a sum which the police authority is “liable to pay as damages”. The fact that the application is first made to the police authority and that the right to make a claim only arises after rejection (or receipt of a suggested amount which is alleged to be too low) does not make any difference to this conclusion. The situation is not dissimilar to that of an insurer who first has to consider a claim; he is still liable to damages (for breach of contract) if he wrongly rejects a claim or offers too low a sum.[27]It may be objected that the concept of responsibility in the previous paragraph is different from and an extension to the concept of “some breach of duty or obligation” as used by Sir Wilfrid Greene MR in Hall v Young. But it is not. Torts of strict liability are based on the concept of responsibility. As a matter of language it is somewhat unnatural to say that the land owner in Rylands v Fletcher, the common carrier or the innkeeper are in breach of duty when their obligation is to be strictly answerable because of the responsibility inherent in their respective positions. But it cannot be doubted that their liability is a liability in damages and that sums paid by them are sums which they are “legally liable to pay as damages”. The same applies to statutes which give rise to strict liability such as the Air Navigation Act 1920 and the Animals Act 1971. The Riot (Damages) Act is no different.[28]Later cases can be explained in the same way. In Yorkshire Water v Sun Alliance [1997] 1 Lloyds Rep, 21 it was held that a landowner could not recover the expense of work incurred by him on his own land to prevent further escape of water when insurers had insured his liability as damages. A landowner cannot be responsible to himself. Similarly HHJ Hegarty QC held that sums statutorily payable to the Environment Agency for doing work on land on to which the insured’s pollutants had escaped were not damages but rather debts due under a statute, Bartoline Ltd v Royal & Sun Alliance Insurance [2007] Lloyd’s Rep I.R. 423. In that case the judge was careful to say that the authorities on “liable to pay as damages” were marine insurance cases and it is certainly true both that the collision liability clause presupposes a liability which on any view must sound in damages and that the proviso to the clause shows what is not intended to be covered. But I would be reluctant to hold that the principle of Hall v Young was applicable only to marine insurance and not, in general, to public liability insurance. Once responsibility is recognised as the key to the matter, it is possible to say that the reasoning in that case is universally applicable.[29]Mr Kealey also relied on Goddard J’s opinion that it did not, in law, matter what theory lay behind the French legislation in Hall v Young. That is an over-simplification of the judge’s remarks. He had already decided that there was no conception of delict or tort in the cause of action given by the French statute. Only once he had so concluded did he say that the theory of the legislation did not matter. But in some cases it may be important to see what theory lies behind the legislation in order in the first place to decide whether there is a conception of delict or tort in the cause of action given by the statute. In this case there is such a concept.[30]Mr Kealey submitted that this participial phrase, just like the preceding phrase “occurring within the Geographical limits” of the policy, naturally attached to the words “accidental damage to property” and that the damage caused by the inmates of Yarl’s Wood did not arise out of the business of the police authority. Mr Edelman QC for the BPA submitted that since the damage would seldom arise from any actual activity of the police authority it is more natural to regard the antecedent of the phrase as being “the sums which the BPA become liable to pay” and that, on any view, the liability arose out of BPA’s business.[31]On this question I prefer Mr Edelman’s submission. Once one concludes that, on its true construction, the policy covers liability arising under the 1886 Act it would be almost absurd to say that the damage must arise out of the business of the BPA. It is not the business of the BPA to cause damage to the property of others.[32]Mr Kealey went so far as to say that, because it was so clear that the damage to the property had to arise from the BPA’s business, that showed that there could never have been the intention to cover liability under the 1886 Act. But that puts the cart before the horse with a vengeance. The substance of the insuring clause occurs in the first 2 lines of the clause and it would be most surprising to find that the concluding words of the clause (some 20 or so lines later) governed the clause’s substantive meaning. The business is defined as being the usual activities of the assured; that is an extremely wide phrase and certainly includes the prevention or diminution of damage caused by “persons riotously and tumultuously assembled” and also the discharging of liabilities which Parliament has imposed upon them.

Conclusion

[33]I would uphold the judge’s decision and dismiss this appeal.[34]I agree.

Sir Peter Gibson:

[35]I also agree.

Cited in 4 later judgments