Nature answers to no one. Insurance, however, is a matter of contract.
Force majeure, literally meaning “superior force”, is a legal expression associated with extraordinary events beyond human control, such as violent storms and floods. When nature unleashes its force upon an insured property, a crucial question arises: does the resulting damage fall within the protection the insurer contractually promised?
Insurance is not an unconditional guarantee against misfortune. It is a contract defining which risks are covered, which are excluded and the circumstances in which a claim may be refused. A storm may be exceptional, destructive and entirely beyond the property owner’s control, yet the resulting loss may still prove irrecoverable.
Was there a “storm”?
In Oddy v Phoenix Assurance Co Ltd [1966] 1 Lloyd’s Rep 134, the court considered the meaning of a storm in an insurance context. The case describes a storm as involving violent wind, usually accompanied by rain, hail or snow. However, whether a storm has occurred, and whether it caused the damage claimed, will depend on the policy wording and the available evidence. No single weather reading necessarily determines the outcome.
What actually caused the damage?
English insurance law ordinarily looks for the “proximate cause” of the loss: the dominant or effective cause, rather than simply the event closest in time.
In Leyland Shipping Co Ltd v Norwich Union Fire Insurance Society Ltd [1918] AC 350, the House of Lords held that the original damage caused by a torpedo remained the effective cause of a ship’s eventual loss, despite subsequent events. This clearly demonstrates the principle that what matters is not simply what happened last, but what effectively brought about the loss. However, causation can become more complex where several causes operate together, and the policy wording remains critical.
Applied to storm damage, the question is whether the storm caused the damage, or whether another operative cause, and the policy wording, point to a different outcome.
An insurer might argue that a storm was not solely responsible for a roof failing and that it failed because of longstanding deterioration, defective workmanship or pre-existing water ingress. To avoid confusion, the evidence and policy wording become critical.
For example, in Wayne Tank and Pump Co Ltd v Employers Liability Assurance Corp Ltd [1974] QB 57, the court considered what happens when a loss results from more than one cause and the policy excludes one of them. The important lesson is that a claim may be refused even where an insured event contributed to the damage, if an exclusion applies to another cause that also contributed to the loss.
For example, a storm may damage a roof already affected by deterioration. If the policy excludes the relevant deterioration, the insurer may argue that the exclusion applies. Whether that argument succeeds depends on the policy wording and the evidence.
When is coverage compromised?
Even where storm damage is established, other aspects of the insurance contract may affect recovery. An insurer might question whether the policyholder provided accurate information about the property when taking out or renewing cover, whether the building was adequately maintained or secured, or whether policy requirements concerning occupancy, periods of vacancy or protective measures were observed.
Notification also matters. If a policy requires prompt reporting of damage, an unexplained delay may complicate the investigation or prejudice the insurer’s position. Equally, policyholders are generally expected to take reasonable steps to prevent further damage once a loss occurs.
However, failing to meet a policy requirement does not automatically entitle an insurer to refuse a claim. The consequences depend on the wording of the policy, the nature of the requirement and the applicable law. For non-consumer insurance, sections 10 and 11 of the Insurance Act 2015 are particularly relevant to warranties and certain terms intended to reduce particular risks.
Residential and commercial property: different risks
For owner-occupied residential property, the Consumer Insurance (Disclosure and Representations) Act 2012 generally requires the policyholder to take reasonable care when answering insurers’ questions. The Consumer Rights Act 2015 also requires those terms to be fair and transparent.
Commercial property insurance arguably places greater responsibility and broader duty on the insured. Commercial policies often impose detailed requirements concerning vacancies (occupation), roofing inspections, drainage and protective measures. A business must make a “fair presentation” of the risk, including material circumstances known, or which ought to be known, to it. Residential landlord insurance may similarly be treated as commercial insurance where the insured acts for business purposes.
The eye of the storm
The decisive issue is often evidence. Photographs taken before and after the storm, local weather records, maintenance histories, repair invoices and expert reports may help establish the severity of the weather, the property’s pre-existing condition and the actual cause of the damage. They can also help determine whether an exclusion applies and whether the insurer’s interpretation of the loss is justified
The most damaging storm may therefore be the evidential one – the gap between what happened and what can be proven.
Beyond the weather
A storm may be beyond anyone’s control, but the insurance consequences are not necessarily beyond examination. The outcome may turn on the condition of the property before the storm, the cause of the damage, the policy’s exclusions and whether its requirements were observed.
For property owners, this makes preparation as important as protection. They should endeavour to maintain the building, understand the policy and document damage promptly. For insurers, the challenge is to distinguish genuine storm damage from loss attributable to excluded causes.
Ultimately, the question extends beyond the force of the weather. It is whether the loss falls within the protection the insurance contract provides and whether the evidence supports recovery.
At Dyne Solicitors, we are specialists in Environmental and Regulatory Disputes. If you would like to discuss a matter, then please contact our Litigation Team for an initial no-obligation chat – 01829 773100 or via e-mail: info@dynesolicitors.co.uk