Revisiting concurrent causation and principles in English insurance law: a legal fiction?

Abstract

This article poses and discusses the question: are the concept and principles of concurrent causes in English insurance law essentially valid, or simply a legal fiction? This article addresses the question from two aspects. First, while concurrent causation in itself is a real concept in insurance contract law, it is often difficult to ascertain in fact and define in law. As for the other aspect, this article suggests that the central cases of Wayne Tank and The Miss Jay Jay have long been misinterpreted by insurance lawyers as having broadly laid down concurrent causes principles in English insurance law. Even following the Supreme Court’s adoption, in the Financial Conduct Authority (FCA) COVID-19 business interruption insurance test case, of a principled application of the doctrine of concurrent causes, concurrent causation remains a largely theoretical analysis, as applied by the English courts. It is submitted that a judicial reinterpretation of both Wayne Tank and The Miss Jay Jay is overdue, and that the focus should be on the interplay of causation and interpretation in the determination of insurance indemnity, no longer referring to the two cases as establishing legal principles of causation.

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ORCID for Meixian Song: orcid.org/0000-0003-2315-761X

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