“The word Damage is extended to include closure of the Premises or part thereof on the order or advice of any local or governmental authority as a result of an outbreak or occurrence at the Premises of … any human contagious or infectious disease other than Acquired Immune Deficiency Syndrome (AIDS) or any AIDS related condition, an outbreak of which is required by law or stipulated by the governmental authority to be notified.”
“At 6.15pm on5 March 2020 , a statutory instrument was made into law that adds COVID-19 to the list of notifiable diseases and SARS-COV-2 to the list of notifiable causative agents. This change was made by adding them to theHealth Protection (Notification) Regulations 2010 . This change in law requires GPs to report all cases of COVID-19 to Public Health England.”
“selling food or drink for consumption off the premises between the hours of 22:00 and 05:00— (a) by making deliveries in response to orders received— (i) through a website, or otherwise by on-line communication; (ii) by telephone, including orders by text message; or (iii) by post; or (b) to a purchaser who collects the food or drink in a vehicle, and to whom the food or drink is passed without the purchaser or any other person leaving the vehicle.”
“Infectious Diseases – Extension The word Damage is extended to include closure of the Premises or part thereof on the order or advice of any local or governmental authority as a result of an outbreak or occurrence at the Premises of: A) any human contagious or infectious disease other than Acquired Immune Deficiency Syndrome (AIDS) or any AIDS related condition, an outbreak of which is required by law or stipulated by the governmental authority to be notified B) food or drink poisoning C) vermin or pests D) defective sanitation Provided that 1) the Maximum Indemnity Period is limited to three months and shall apply from the date from which the closure order is enforced 2) the Company shall not be liable under this Extension for more than the limit stated below in respect of any one loss Limit£15,000,000 Subject otherwise to the terms Exclusions and Conditions of this Policy”
“Extensions to Section 2 … The liability of the Insurer includes loss as insured by this Section resulting from interruption or interference with the Business in consequence of 1) Premises Closure or Restrictions a) closure or restrictions placed on the Premises on the advice of or with the approval of the Medical Officer of Health for Public Authority as a result of a Notifiable Human Disease occurring at the Premises b) closure of the whole or part of the Premises by order of the Public Authority consequent upon injury or illness sustained by any person caused by or traceable to foreign or injurious matter in food or drink sold from the Premises by the Insured c) closure of the whole or part of the Premises by order of the Public Authority consequent upon vermin and pests at the Premises d) closure of the whole or part of the Premises by the order of the Public Authority consequent upon closure of the whole or part of the Premises by order of the Public Authority consequent upon defects in the drains and other sanitation at the Premises e) closure of the whole or part of the Premises by order of the Public Authority consequent upon murder or suicide occurring at the Premises Subject to an aggregate maximum of£50,000 in any one Period of Insurance The Insurer shall not be liable under this extension for costs incurred in cleaning repair replacement recall or checking of property”
“Extensions The insurance is extended to include business interruption loss as insured in the Section in consequence of … 6 A) closure or restrictions placed on the Premises on the advice or with the approval of the Medical Officer of Health of the Public Authority as a result of a notifiable human disease manifesting itself at the Premises. B) closure or restrictions placed on the Premises due to Injury or illness sustained by any customer or Employee arising from or traceable to foreign or injurious matter in food or drink sold from the Premises. C) closing of the whole or part of the Premises by order of the Public Authority for the area in which the Premises are situate consequent upon defects in the drains and other sanitary arrangements at the Premises. D) closure or restrictions placed on the Premises due to murder or suicide occurring at the Premises. E) loss destruction or damage caused by any of the Covers to property in the vicinity of the Premises which prevents or hinders the use of the Premises or access thereto whether the Premises or Your property therein shall be damaged or not but excluding Damage which prevents or hinders the supply of electricity gas water or telecommunications services.”
“Operation of restaurants. Dough and pizza base makers and suppliers”
“any premises owned, leased, used or occupied by the Insured within the Territorial Limit, as declared to and accepted by Insurers”
“Pages 27 & 28 of the Trio Property and Business Interruption Policy Extended Incident is amended as follows – 2 Extended Incident Incident for the purpose of all cover provided by Section 2 includes: a. Notifiable Human Disease and Other Health Risks i. any occurrence of a Notifiable Human Disease at the Premises or a Notifiable Human Disease attributable to food or drink supplied from the Premises, ii. any discovery of an organism or causative agent at the Premises likely to result in the occurrence of a Notifiable Human Disease, that causes restrictions on the use of the Premises on the order or advice of a statutory, local or other competent authority, iii. the discovery of an infestation of vermin or pests at the Premises that cannot be controlled in the ordinary course of the business, iv. any accident causing defects in the drains or other sanitary arrangements at the Premises that cannot be controlled in the ordinary course of the business, including accidental leakage or escape of sewage or effluent v. any occurrence or alleged occurrence (of which the Police are informed and investigating)of death, murder, suicide, assault, rape, abduction, physical abuse or sexual abuse at the Premises. Cover provided by this Extension includes the costs and expenses incurred following any Incident described above, in a. cleaning and decontamination of property used by the Insured for the purpose of the Business (other than stock in trade), b. removal and disposal of contaminated property owned or leased by the Insured or for which the Insured is responsible, c. repair or replacement of property owned or leased by the Insured or for which the Insured is responsible, provided that such costs do not increase the Insurer’s liability beyond the amount which would have been recoverable under items a. and b. above. Definitions for the purposes of this Extension Notifiable Human Disease means human disease, suspected human disease or contamination which must be notified to the local authority, excluding any occurrence, whether directly or indirectly, of a. any mutation of Avian Flu that manifests itself as a human infectious or human contagious disease b. Severe Acute Respiratory Syndrome (SARS). Premises means any location included within the Premises definition applying to Section 2, but excluding any location outside Great Britain, Northern Ireland, Republic of Ireland, Channel Islands and the Isle of Man.”
“…closure of the Premises…on the order or advice of any local or governmental authority as a result of an outbreak or occurrence at the Premises of … any human contagious or infectious disease … an outbreak of which is required by law or stipulated by the governmental authority to be notified.”
“… if there is a local outbreak of a disease occurring more widely, then it is only the effects of the disease occurring locally, and only insofar as they can be distinguished, which are covered. RSA submits that this is the purpose and effect of the 25-mile radius provision …”
“[103] The relevant scheme for notification, as mentioned above, is contained in the 1984 Act and the 2010 Regulations. Under the 2010 Regulations, registered medical practitioners have a duty to notify proper officers of the relevant local authority, amongst other things, of grounds for suspecting that a patient has a notifiable disease. Under the same Regulations, the relevant local authority must disclose the fact of a notification of a notifiable disease to, amongst others, PHE [Public Health England], and to the proper officer of the local authority in whose area the patient usually resides, if different. At the time of the conclusion of the contracts of insurance in question, there were some 31 diseases specified in schedule 1 to the 2010 Regulations as notifiable, including cholera, plague, typhus, yellow fever and SARS. Under RSA 3, furthermore, the cover in Extension vii is not limited to Notifiable Diseases which have been included on schedule 1 at the outset of the insurance, but extends to others which may be added thereto, as Covid-19 has been.”
“[104] While there is clearly a spectrum of diseases within the category of Notifiable Diseases, it includes diseases which are capable of widespread dissemination, such as SARS (Severe Acute Respiratory Syndrome), which is a viral respiratory illness caused by the SARS-associated coronavirus for which there is no vaccine. It is in the nature of human infectious and contagious diseases that they may spread in highly complicated, often difficult to predict, and what might be described as “fluid”, patterns. Furthermore, the list of diseases includes some which might attract a response from authorities which are not merely local authorities, and which is not a purely local response. The requirement under the Regulations of notifications to PHE, and to other local authorities facilitates such wider responses. Moreover, in terms of Extension vii, the fact that it is envisaged that the occurrence of a notifiable disease up to 25 miles away might be followed by interruption of business at the insured’s premises demonstrates, in our view, that the parties must have contemplated that there might be relevant actions of public authorities which affect a wide area. They must also have contemplated that the authorities might take action in relation to the outbreak of a notifiable disease as a whole, and not to particular parts of an outbreak, and would be most unlikely to take action which had any regard to whether cases fell within or outside a line 25 miles away from any particular insured premises.”
“[112] Alternatively, although we regard this as being less satisfactory, each of the individual occurrences was a separate but effective cause. On this analysis they were all effective because the authorities acted on a national level, on the basis of the information about all the occurrences of Covid-19, and it is artificial to say that only some of those which had occurred by any given date were effective causes of the action taken at that date; and still more artificial to say that because the action was taken in response to all the cases, it could not be regarded as taken in response to any particular cases. As Mr Edelman QC submitted, there is material in the agreed facts which provides a sufficient basis for this analysis. He pointed to the information which the government was acting upon, and a number of SAGE minutes, which show that the government response was the reaction to information about all the cases in the country, and that the response was decided to be national because the outbreak was so widespread. As Mr Edelman QC pointed out, the Secretary of State for Health and Social Care, Mr Hancock, on28 April 2020 stated that thought had been given to imposing measures first on London and the Midlands, but it had been decided that “we are really in this together”, and that “the shape of the curve … has been very similar across the whole country”
“only relevant effects of cases of Covid-19 that occur at or within a specified radius of the insured premises. They do not cover effects of cases of Covid-19 that occur outside that geographical area”
“[161] On what we consider to be the correct interpretation of the disease clauses, however, questions of causation are of crucial importance. We have concluded that the clauses cover only the effects of cases of Covid-19 occurring within the specified radius of the insured premises. On this basis, the question of what connection must be shown between any such cases of disease and the business interruption loss for which an insurance claim is made becomes critical.”
“[176] Thus, in the present case it obviously could not be said that any individual case of illness resulting from COVID-19, on its own, caused the UK Government to introduce restrictions which led directly to business interruption. However, as the court below found, the Government measures were taken in response to information about all the cases of COVID-19 in the country as a whole. We agree with the court below that it is realistic to analyse this situation as one in which "all the cases were equal causes of the imposition of national measures" (para 112).”
“[212] We conclude that, on the proper interpretation of the disease clauses, in order to show that loss from interruption of the insured business was proximately caused by one or more occurrences of illness resulting from COVID-19, it is sufficient to prove that the interruption was a result of Government action taken in response to cases of disease which included at least one case of COVID-19 within the geographical area covered by the clause. The basis for this conclusion is the analysis of the court below, which in our opinion is correct, that each of the individual cases of illness resulting from COVID-19 which had occurred by the date of any Government action was a separate and equally effective cause of that action (and of the response of the public to it). Our conclusion does not depend on the particular terminology used in the clause to describe the required causal connection between the loss and the insured peril and applies equally whether the term used is "following" or some other formula such as "arising from" or "as a result of". It is a conclusion about the legal effect of the insurance contracts as they apply to the facts of this case.”
“[250] It is unnecessary to address other hybrid and prevention of access clauses in relation to which, as noted earlier, this issue does not affect the outcome of the proceedings. In principle, however, a similar analysis must apply to those clauses as to the clauses which we have specifically addressed.”
“[73] Similarly, we think the court below was right to attach significance in interpreting the policy wording to the potential for a notifiable disease to affect a wide area and for an occurrence of such a disease within 25 miles of the insured premises to form part of a wider outbreak. But again, the significance of those matters, in our view, is in relation to questions of causation. They cannot justify extending the geographical scope of the cover beyond the area clearly specified in the policy. As discussed, that goes beyond interpretation and involves rewriting the clause.”
“[190] … Whether an event which is one of very many that combine to cause loss should be regarded as a cause of the loss is not a question to which any general answer can be given. It must always depend on the context in which the question is asked. Where the context is a claim under an insurance policy, judgements of fault or responsibility are not relevant. All that matters is what risks the insurers have agreed to cover. We have already indicated that this is a question of contractual interpretation which must accordingly be answered by identifying (objectively) the intended effect of the policy as applied to the relevant factual situation. [191] For these reasons there is nothing in principle or in the concept of causation which precludes an insured peril that in combination with many other similar uninsured events brings about a loss with a sufficient degree of inevitability from being regarded as a cause - indeed as a proximate cause - of the loss, even if the occurrence of the insured peril is neither necessary nor sufficient to bring about the loss by itself. It seems incontrovertible that in the examples we have given there is a causal connection between the event and the loss. Whether that causal connection is sufficient to trigger the insurer's obligation to indemnify the policyholder depends on what has been agreed between them.”
“[194] In deciding between these competing interpretations, we consider that the matters of background knowledge to which the court below attached weight in interpreting the policy wordings are important. The parties to the insurance contracts may be presumed to have known that some infectious diseases - including, potentially, a new disease (like SARS) - can spread rapidly, widely and unpredictably. It is obvious that an outbreak of an infectious disease may not be confined to a specific locality or to a circular area delineated by a radius of 25 miles around a policyholder's premises. Hence no reasonable person would suppose that, if an outbreak of an infectious disease occurred which included cases within such a radius and was sufficiently serious to interrupt the policyholder's business, all the cases of disease would necessarily occur within the radius. It is highly likely that such an outbreak would comprise cases both inside and outside the radius and that measures taken by a public authority which affected the business would be taken in response to the outbreak as a whole and not just to those cases of disease which happened to fall within the circumference of the circle described by the radius provision. [195] We do not consider it reasonable to attribute to the parties an intention that in such circumstances the question whether business interruption losses were caused by cases of a notifiable disease occurring within the radius is to be answered by asking whether or to what extent, but for those cases of disease, business interruption loss would have been suffered as a result of cases of disease occurring outside the radius. Not only would this potentially give rise to intractable counterfactual questions but, more fundamentally, it seems to us contrary to the commercial intent of the clause to treat uninsured cases of a notifiable disease occurring outside the territorial scope of the cover as depriving the policyholder of an indemnity in respect of interruption also caused by cases of disease which the policy is expressed to cover. We agree with the FCA's central argument in relation to the radius provisions that the parties could not reasonably be supposed to have intended that cases of disease outside the radius could be set up as a countervailing cause which displaces the causal impact of the disease inside the radius. [196] This conclusion is reinforced by the other matter to which the court below attached particular importance in interpreting the disease clauses. This is the fact that the relevant wordings do not confine cover to a situation where the interruption of the business has resulted only from cases of a notifiable disease within the radius, as opposed to other cases elsewhere. As leading counsel for the FCA, Mr Edelman, pointed out, to apply a "but for" test in a situation where cases of disease inside and outside the radius are concurrent causes of business interruption loss would give the insurer similar protection to that which it would have had if loss caused by any occurrence of a notifiable disease outside the specified radius had been expressly excluded from cover. If the insurers had wished to impose such an exclusion, it was incumbent on them to include it in the terms of the policy. [197] We accordingly reject the insurers' contention that the occurrence of one or more cases of COVID-19 within the specified radius cannot be a cause of business interruption loss if the loss would not have been suffered butfor those cases because the same interruption of the business would have occurred anyway as a result of other cases of COVID-19 elsewhere in the country.”
“[204] … it is entirely reasonable for insurers to set a territorial limit to the scope of business interruption cover which is arbitrary in the sense that there is no particular logic for selecting a radius of 25 miles, rather than 24 or 26, to define it and though the consequence of selecting a specific distance will inevitably be that there will be no cover for business interruption in some cases when on very slightly different facts there would have been cover.”
“[206] By contrast, an interpretation that recognises the causal requirements of the policy wordings as being satisfied in circumstances where each case of disease informs a decision to impose restrictions and treats each such case as a separate and equally effective cause of the restrictions irrespective of its geographical location and the locations of other such cases avoids such irrational effects and the need for arbitrary judgments and is also clear and simple to apply. This accords with the presumed intention of the parties to an insurance product sold principally to SMEs and often with relatively low financial limits. (For example, under MSA 1 the maximum payable for any one loss is£100,000 .) It also accords with the desire for certainty manifest in the definition of cover by reference to a specific radius of 25 miles (or one mile) of the insured premises. [207] … On the interpretation that we think makes best sense, only the effects of any case occurring within the radius are covered but those effects include the effects on the business of restrictions imposed in response to multiple cases of disease any one or more of which occurs within the radius.”
“[316] … As the majority show, there were a number of well-known notifiable diseases (such as cholera, plague, typhus, yellow fever and SARS) to which the relevant clauses clearly applied, all of which were capable of spreading rapidly and widely, so as potentially to cause a threat to health on a national scale, and to threaten a national reaction by the responsible authorities, leading to business disruption on a national scale.”
“By contrast, on particular facts a closure order might well be said to have been made as a result of disease at the Premises even in circumstances where disease was not confined to the Premises. If a closure order were made of the Premises (and possibly other, probably local, premises) in response to both an outbreak of disease at the Premises and to the presence of disease in the immediate neighbourhood of the Premises, one might conclude that the order might nevertheless be regarded by the reasonable observer as a result of the disease at the Premises. This might be the case if, for instance, disease occurred at other locations on the ExCeL campus, as well as at the Premises, and the authorities ordered the closure of both the campus and the Premises.”
“Alternatively, although we regard this as being less satisfactory, each of the individual occurrences was a separate but effective cause. On this analysis they were all effective because the authorities acted on a national level, on the basis of the information about all the occurrences of COVID-19, and it is artificial to say that only some of those which had occurred by any given date were effective causes of the action taken at that date; and still more artificial to say that because the action was taken in response to all the cases, it could not be regarded as taken in response to any particular cases. As Mr Edelman QC submitted, there is material in the Agreed Facts which provides a sufficient basis for this analysis. He pointed to the information which the government was acting upon, and a number of SAGE minutes, which show that the government response was the reaction to information about all the cases in the country, and that the response was decided to be national because the outbreak was so widespread. As Mr Edelman QC pointed out, the Secretary of State for Health and Social Care, Mr Hancock, on28 April 2020 stated that thought had been given to imposing measures first on London and the Midlands, but it had been decided that “we are really in this together”, and that “the shape of the curve… has been very similar across the whole country”
“However, as the court below found, the Government measures were taken in response to information about all the cases of COVID-19 in the country as a whole. We agree with the court below that it is realistic to analyse this situation as one in which "all the cases were equal causes of the imposition of national measures" (para 112).”
“The actual presence of Covid-19 in the UK in March 2020 would have been much higher than was reflected in the number of Reported Cases. However, the extent of the difference between the number of Reported Cases and the actual number of people infected with Covid-19 is not agreed.”
“… that there would be formidable difficulties in the way of any suggestion that there could be cover under a policy such as the Argenta policy, which, unlike RSA 4, has no deeming provision as to notifiability, before the date on which the disease became notifiable”
“What (if anything) is the effect of the requirement in the Premises Closure or Restrictions Extension that any closure or restrictions must be placed on the Premises “on the advice or with the approval of the Medical Officer of Health for the Public Authority”?”
“Allianz has said that Professor Chris Whitty is the Chief Medical Officer and that he is not the Medical Officer of Health for the Public Authority. Allianz has also argued that, in the context of this clause, “Public Authority” is the local authority only, rather than the national government. I noted that neither of these terms are defined within the policy. As such, they need to be interpreted as they would be understood by a reasonable person at the time of entering the contract. I explained that “Medical officer of health” is largely a historical term. It was used in thePublic Health Act 1961 , but it is not in more recent public health legislation. Section 37 of this Act relates to the sale of verminous articles and appears to be the only legislative term relating to the medical officer of health. The role itself is also historic and no longer exists. I noted that when the role was in existence, it did have a focus on local authority matters rather than anything national. But [I] considered this to be a reflection of the make-up of healthcare services generally at the time medical officers of health were introduced, rather than the current situation which is more of a mix between national and localised healthcare. I considered the current set-up of the healthcare system was also significant when considering the potential actions taken in the face of the occurrence of many of the diseases covered by R’s policy. As set out above, the responses to many of these diseases would be widespread and would require more nationally-orientated action. To say that the policy provides cover for a disease that would likely only be acted upon by national government, but then to limit cover to the actions of a local authority would, to my mind, provide an irrational result. Ultimately, I said the clause refers to a term that is dated and it would not be reasonable to expect a customer taking out an insurance policy of this nature to understand the historical positioning of a redundant role, and then apply that to how the clause in question should be interpreted in relation to cover for a wide-spreading disease. An alternative question is whether a reasonable customer would consider that a clause referring to the advice of the Medical Officer of Health would include the advice of the Chief Medical Officer for England. I considered that this is how a reasonable person would have interpreted this clause at the time the policy was taken out. […] I considered the words “Public Authority”, in the absence of any further definition, could only be fairly interpreted in a broad sense. And so would include the actions of the Government. Whilst I took Allianz’s points into account, I was not persuaded that a reasonable person reading R’s policy would interpret the wording used in Extension 1 as relating only to advice or approval of a locally based medical officer, and excluding any action by Government. I didn’t believe such a restrictive interpretation to be reasonable. To paraphrase the Supreme Court, I didn’t think this would be the understanding held by the ordinary policyholder who, on entering into the contract, has read through R’s policy conscientiously in order to understand what cover they were getting.”
“Murder, suicide and infectious diseases extension 2006 Section B (loss of Profits) is extended to included losses arising from the closure of the Premises by a competent authority due to an human notifiable infectious disease or food poisoning suffered by any visitor or employee or by defective sanitation vermin or pests at the Premises as specified in the schedule or by murder or suicide occurring at the Premises.”
“5. Subject to paragraph 7A below, there was COVID-19, and COVID-19 was “sustained” or “occurred” within a given radius of the premises in Argenta1, Hiscox4 (hybrid), QBE2-3 and RSA3, wherever a person or persons contracted COVID-19 so that it could be diagnosed, whether or not it was verified by medical testing or a medical professional and/or formally confirmed or reported to the PHE and whether or not it was symptomatic, and was/were within that radius of the premises at a time when they could still be diagnosed as having COVID-19. 6. Subject to paragraph 7A below, there was “illness sustained by any person resulting from”
“[224]. One minor issue of construction should be addressed at the outset. This is what is meant by “manifested” as used within clause 7.3.9(a). Clearly someone who is displaying symptoms of a disease can be said to “manifest” it. We consider that it would also be the case that a person “manifested” the disease if, though superficially asymptomatic, he or she was diagnosed with the disease, because the disease would have “manifested” itself to the diagnoser. We do not consider that it is possible to speak of someone who is asymptomatic and has not been diagnosed as having the disease as having “manifested” it.”
“[93]. In relation to the first argument it is helpful to deal at the outset with two preliminary points. The first is that it is common ground that COVID-19 was a Notifiable Disease for the purposes of Extension vii (a)(iii) in all parts of the United Kingdom by6 March 2020 . The second is as to what constituted an “occurrence” of COVID-19, and in particular what constituted such an “occurrence” within the 25 mile radius provided for in Extension vii. The FCA’s case is that there will have been an occurrence of the disease whenever or wherever a person had contracted COVID-19 such that it was diagnosable, whether or not it had been verified by diagnosis, and whether it was symptomatic. RSA’s pleaded case is that nothing less than an actual diagnosis of COVID-19 would be sufficient to establish any relevant “occurrence”
“We also remind you of your obligations under the Health & Safety atWork Act 1974 to protect the health safety and welfare of your Employees which includes · Workplace risk assessments · Full and effective training · Provision of appropriate personal protective equipment (PPE) · Communication of health and safety procedures”