When Two Becomes One: Aggregation of Claims

‘Claim’ shall mean each Claim or series ofClaims (whether by one or more than oneClaimant) arising from or in connection withor attributable to any one act, error,omission or originating cause or source ordishonesty of any one person or group ofpersons acting together and any such seriesof Claims shall be deemed to be one Claimfor all purposes under this Policy.

If you say of a claim against a defendant that it isfor £100, you have said all that is necessary toidentify it as a claim; but if you say of it that it is forfraud or negligence, you have not distinguished itfrom a charge or allegation. In particular, if youidentify a claim as something that has to be paid …it must be something that is capable of separatepayment: you cannot pay a cause of action. Itfollows, I think, that if there is only one objectclaimed by one person, then there is only oneclaim, however many may be the grounds or thecauses of action which can be raised in support ofit: …

To suggest as [the third party claimant]has done that each separate cause ofaction which was the cause of a singleclaim gives rise to separate additionallimits of liability for that claim stands theclause on its head; it is a contentioncontrary to its plain commercial purpose.

In my view, looking at the demand in the letterbefore action, the formulation of the statement ofclaim and the annexed schedule of damages(where one single sum was claimed) and thereality of the position, I have no doubt but thatthere was one claim by [the third party claimant]for the damage caused by the fire. The divisionmade by [the trial judge] was solely for thepurpose of distinguishing between the soleliability of [the insured] for the damage to thecabling and the other damages for which all of thethree defendants in that action were liable.

In my judgment, the three requirementsof a relevant event are that there was acommon factor which can properly bedescribed as an event, which satisfiedthe test of causation and which was nottoo remote for the purposes of theclause.

In ordinary speech, an event issomething which happens at a particulartime, at a particular place, in a particularway. …A cause is to my mind somethingaltogether less constricted. It can be acontinuing state of affairs; it can be theabsence of something happening.Whilst an event, occurrence or claim is‘something which happens at a particulartime, at a particular place in a particularway’ a ‘cause’ is not just ‘somethingaltogether less constricted’ it is a wordwhich is fulfilling a different function. Theword event, occurrence or claim describeswhat has happened; the word ‘cause’describes why something has happened.

Insurers' total liability under this Policy inrespect of any Claim or Claims arisingfrom one originating cause, or series ofevents or occurrences attributable to oneoriginating cause or related causes, shallin no event exceed the sum stated in Item3(a) of the Schedule.

A culpable misappreciation by anindividual which leads him to commit anumber of negligent acts can arguably besaid to constitute a single event ororiginating cause responsible for all thenegligent acts and their consequences.The same is not true when a number ofindividuals each act under an individualmisappreciation, even if the nature of thatmisappreciation is the same.For the purpose of this reinsurance theterm 'each and every loss' shall beunderstood to mean each and every lossand/or occurrence and/or catastropheand/or disaster and/or calamity and/orseries of losses and/or occurrencesand/or disasters and/or calamities arisingout of one event.

If a series of third party claims shall resultfrom any single act or omission (or relatedseries of acts or omissions) then,irrespective of the total number of claims,all such third party claims shall beconsidered to be a single third party claimfor the purpose of the application of thedeductible.

one occurrence or all occurrences of aseries consequent upon or attributableto one source or original causeIn my view, the lack of proper training ofthe selling agents and selling employeeswas behind the whole problem. It was thiswhich, on the assumed facts, was aconsistent and necessary factor whichallowed the mis-selling to occur. Maybe,the activities of individual salesmen werealso causative but the clause entitles oneto move back and find a single source ororiginal cause; and in this case, there isone.

the word ‘originating’ was in my viewconsciously chosen to open up thewidest possible search for a unifyingfactor in the history of the losseswhich it is sought to aggregate.the distribution of a misleadingdocument in identical terms bysomeone who was not himselfnegligent but ought to have beencorrected by someone else who was.The two acts or omissions would be aseries which together caused each ofthe losses

all claims or losses … arising out of or attributable toor consequent upon(a) the same or similar or related occurrencescircumstances events acts errors or omissions of theAssured including an act or acts of dishonesty or(b) any series or multiplicity of similar or relatedoccurrences circumstances events acts errors oromissions of the Assured including a series ormultiplicity of acts of dishonestyand whether involving or committed or omitted byany person or persons or companies acting togetheror jointly or in concert or separately or independentlyshall constitute a single claimall Claims against any one or moreInsured arising from:(i)….(ii)one series of related acts or omissions;(iii)the same act or omission in a series ofrelated matters or transactions;(iv)similar acts or omissions in a series ofrelated matters or transactions…will be regarded as one Claim.

Where a contract has been professionallydrawn… the draftsman is certain to have inmind decisions of the Courts on earliereditions of the clause. Such decisions arepart of the context or backgroundcircumstances against which the particularcontract falls to be construed. If thedraftsman chooses to adopt the same wordsas previously construed by the Courts, itseems to me to be likely that, other thingsbeing equal, he intends that the wordsshould continue to have the same meaning.each and every loss and/or occurrenceand/or catastrophe and/or disaster and/orcalamity and/or series of losses and/oroccurrences and/or catastrophes and/ordisasters and/or calamities arising out ofone event

The losses or series of lossesenvisaged by the clause must have“arisen out of” one event, which in thiscontext straightaway implies somecausative element and some degree ofremoteness, or lack of remoteness,which must be established in thecircumstances of the particular case.The language of the aggregationclause, read with the definition of “act oromission”, shows that the insurers werenot willing to accept as a unifying factora common cause more remote than theact or omission which actuallyconstituted the cause of action. An actor omission could qualify as a unifyingfactor in respect of more than one lossonly if it gave rise to civil liability inrespect of both losses.

All claims or series of claims (whetherby one or more than one claimant)arising from or in connection with orattributable to any one act, error,omission or originating cause orsource, or the dishonesty of any oneperson or group of persons actingtogether, shall be considered to be asingle third party claim for the purposesof the application of the Deductible.Whereas in Axa the words used were “arisingfrom”, and in Municipal Mutual and Countrywidethe words used were “consequent on orattributable to”, the Policy here uses the words“arising from or in connection with orattributable to” (emphasis added). The phrase“in connection with” is extremely broad andindicates that it is not even necessary to show adirect causal relationship between the claimsand the state of affairs identified as their“originating cause or source”, and that someform of connection between the claims and theunifying factor is all that is required.

for financial loss caused by a breach on thepart of the assured or an officer or employeeof the assured of the provisions of theFinancial Services Act 1986 (including withoutlimitation any rules or Regulations made byany regulatory authority or any self regulatoryorganisation pursuant to the provisions of theAct)…in respect of which civil liability ariseson the part of the assured.