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On the principle of proximate cause in insurance law

[Huang Yixin]-(August 29th, 2005)/Read 2 1 182 times.

On the principle of proximate cause in insurance law

Huang Yixin

The principle of proximate cause is the first basic principle of determining causality established by British marine insurance law. After long-term practice and development, it has been adopted by the insurance laws of many countries. Insurance companies in China often refuse to pay compensation on the grounds of non-proximate cause when insurance accidents occur. However, due to the lack of clear provisions in China's insurance legislation, local courts are generally unfamiliar with this imported product, and judges will not or dare not apply it in judgment documents, resulting in some difficult or unclear insurance disputes from time to time. In order to improve China's insurance legislation and connect with international insurance practices, China should confirm the principle of proximate cause in legislation and judicature as soon as possible. This paper attempts to elaborate on this in order to attract more attention.

First, the meaning of the principle of proximate cause

Causation, which means "closest, approximate and immediate" in English (in time, place or order), is difficult to find a completely corresponding word in Chinese, such as "direct cause" (corresponding to direct cause), which cannot fully cover its connotation, so it is simply translated into "proximate cause" now. The introduction of this exotic product is not only fashionable, but also timely, and will be a mature legal rule system for adjusting causality in Anglo-American law. The principle of proximate cause, in short, means that the insurer's liability should be limited to the losses caused by the insurance risk as proximate cause. Although China's current Insurance Law and Maritime Law do not stipulate the principle of causation, the principle of proximate cause is generally applied in foreign-related relations such as marine insurance, and the Interpretation on Several Issues Concerning the Trial of Insurance Disputes (Draft for Comment) promulgated by the Supreme Court in February 2003 also adopted this concept. Article 19 of the exposure draft clearly stipulates: "If the insurer claims to bear the liability for compensation by taking the loss caused by the insured risk as the proximate cause, the people's court shall support it."

The principle of proximate cause originates from the British Marine Insurance Act (1906). Article 55 of the Law (1) stipulates: "According to the provisions of this Law, unless otherwise stipulated in the insurance policy, the insurer shall be liable for losses caused by the insured peril as the proximate cause, and shall not be liable for losses caused by the insured peril as the proximate cause." (1) This is because the marine insurance contract is a strict "limited compensation contract", and the scope of the insurer's liability for compensation cannot be the total loss of the subject matter insured, but the partial loss caused by dangerous reasons within a certain range (so-called "insured loss"). Therefore, marine insurance claims should apply the special principle of causality, that is, the so-called "principle of proximate cause" in common law. This principle requires that there must be a causal relationship between the occurrence of insurance risks and the damage to the subject matter insured, which conforms to the provisions of the marine insurance law. This principle has been gradually extended to the whole insurance law and even tort law (even a part of contract law) by judges and scholars in common law system. At present, the insurance legislation of many countries in the world mostly determines the principle of proximate cause as the basic principle of insurance law. ①

However, because the Anglo-American legal system emphasizes case analysis and ignores abstract induction, the meaning of proximate cause is not completely clear so far. For example, prosser, a famous professor of tort law in the United States, thinks that the word Proximate means the nearest in time and space. Blake's legal dictionary said: "The so-called recency here is not necessarily the recency in time or space, but the recency of a causal relationship. The proximate cause of damage is the main cause or motive or effective cause. " Nevertheless, in the long-term trial practice, the judges of the two legal systems have established three basic rules for judging proximate cause through precedents and theories: first, proximate cause is a substantial, significant and positive factor leading to damage results; Second, this factor works naturally and continuously, which does not involve other factors that affect the occurrence of results and cause the interruption of causality; Third, based on the concept and policy analysis of fairness and justice. ② This time, the Supreme Court also defined proximate cause in the second paragraph of Article 19 of the Judicial Interpretation of Insurance (Draft for Comment): "proximate cause refers to the decisive and effective reason for underwriting loss". However, the meanings of "decisive" and "effective" are obviously too vague and lack of maneuverability, so it still needs to be individualized and concrete in the form of judicial practice.

Second, the specific identification of proximate cause

In insurance practice, the causes of loss may be single or multiple; It can be insured risk, excluded risk or risk not mentioned in the insurance policy. When the loss is caused by a single cause, the cause of the loss is proximate cause, and the insurer's liability is easy to determine. If the reason is the insured risk, the insurer must compensate. If it is an excluded risk or a risk not mentioned in the insurance policy, no compensation is required. In the case of various reasons, it is necessary to examine its internal logical relationship.

A variety of reasons continue to occur

If two or more reasons cause damage continuously, if the latter is the direct and inevitable development result of antecedent or reasonable continuation, the former is the proximate cause. Here, there is a causal relationship between the cause and the cause, and the cause is only a link in the causal chain in which the cause acts on the subject matter of insurance. In other words, the cause builds a bridge between the cause and the damage result, and acts as an intermediary or medium, but it has no decisive influence on the result, and the reason is proximate cause. If the cause is the insured risk, but whether it is the insured risk or not afterwards, the insurer shall bear the responsibility; On the other hand, if the antecedent is not the insured risk, the insurer is not liable. Of course, it is not appropriate for the insurer to assume insurance liability according to the independent causal relationship between the insurer and the damage result.

In the famous case of Eisennington v. Accident Insurance Company, the insured accidentally fell from a tree while hunting, and the injured insured climbed to the roadside to wait for rescue, and died of pneumonia due to the cold weather at night. Pneumonia is an excluded liability in the accident insurance policy, but the court held that the immediate cause of the insured's death was an accident-falling from a tree, so the insurance company should compensate. On the contrary, if it is not the underwriting risk before, even if it is the underwriting risk afterwards, the insurance company will not be liable for compensation. /kloc-there was a similar case in Britain in the 0 th and 9 th centuries. The insured suffered from epilepsy and drowned in one attack. The accident insurance insurer's claim for refusing compensation was supported by the court. Another example is that the ship was destroyed by gunfire and the hull sank into the water. The hull flooding is the direct result of the war. Under an insurance policy that does not include losses caused by war, the insured can't get compensation from the marine cargo insurance. ③

(2) Intermittent occurrence due to multiple reasons

A variety of reasons occurred one after another, but the latter one intervened and interrupted the original causal chain between an event and the damage result, and played a decisive role in the damage result independently. The new reason for intervention is proximate cause. At this point, there is no causal relationship between cause and effect, and the cause is not the direct and inevitable development of the cause, so the cause loses the possible domination and coercion of the damage result. It should be pointed out that here, the intervention causes "independently" have an impact on the damage results, or the intervention causes are "independent causes" of the damage results. It does not rule out that in real life, it is more the case that the subject matter of insurance is caught in an abnormal situation before and intervention leads to the damage results. The key point is that the cause is a sufficient condition to damage the result when the subject matter insured is in an abnormal state, and the cause is not a sufficient or necessary condition to damage the result itself except that the subject matter insured is in an abnormal state. Of course, it is also possible that the causal relationship between the damage results caused by the antecedent acting on the subject matter of insurance is not interrupted, but the antecedent is still the proximate cause.

A typical case is that the insured is only insured against fire and not against theft. When a fire broke out, some property was rescued, put in the open air and then stolen. In this case, although there was a fire, it was not the inevitable result of the fire that the subject matter of insurance was placed in the open air. Even if it is placed in the open air, strengthening supervision will not necessarily be stolen. It can be seen that there is no causal relationship between fire and theft. Theft is involved in the fire, which leads to the loss of the subject matter insured independently. Therefore, the insurer does not have to bear the liability for fire insurance. ①

Attention should be paid to distinguish between "multi-cause discontinuity" and "multi-cause continuity". For example, in order to escape the pursuit of enemy ships, a ship entered a bay that was neither a port nor an anchorage, and ran aground because it could not be driven out. Here, chasing and stranding constitute multiple reasons, chasing is the proximate cause, and the insurer can invoke clauses other than hostile acts free of charge; But suppose the chased ship entered a bay as before, but when it left the bay to continue sailing, it was caught in a storm and lost its way. Although it was the pursuit that made the ship in an abnormal situation, the direct cause should still be considered as a storm, not a multi-cause interruption. For another example, a port has two waterways to enter, but one of them is full of torpedoes for military defense. The ship that didn't know about it entered the channel full of torpedoes and lost its way. Then the proximate cause naturally falls within the scope of exclusion, and the insurer will not compensate; However, assuming that the captain knows the situation of mine laying and chooses another channel to enter the port, but he is stranded due to navigation errors, then the proximate cause of the loss is no longer hostility.

Many reasons coexist.

The so-called coexistence means that in the whole process of causing losses, multiple reasons exist at the same time, and there is no relationship between them. Note that "coexistence" does not mean "simultaneous occurrence". In time, there may be multiple reasons first, but as long as it is "simultaneous existence" in the time when the behavior on the subject matter of insurance causes the damage result, it is enough. The key is to examine whether there is a causal relationship between causes, that is, whether causes are caused by causes and start from causes. If not, even if the cause lags behind the cause, the coexistence relationship is still established, which is the qualitative stipulation that this type is different from other types. At the same time, it should be noted that no matter whether it is acting force or causal force, each cause does not necessarily constitute a sufficient condition for the damage result. If it is independent, it may not lead to damage results for any reason, but this does not affect its proximate cause.

For example, a ship collided with a sunken ship in the river, knocked out a hole, and was temporarily repaired and towed to the repair port by sea. On the way, water poured in from the leak and finally abandoned the ship. In this case, there is no causal relationship between the collision and the seawater influx itself, but * * * acts on the ship, and * * * causes the loss of the ship, all of which are proximate causes. Another example is the fire in the factory, which is partly due to the negligence of employees and partly due to equipment defects. At this point, employee negligence and equipment defects are both proximate causes.

Pay attention to distinguish between "multi-cause coexistence" and "multi-cause interruption". For example, the insured of personal accident insurance suffered from heart disease for many years, was admitted to hospital due to a car accident, and died of myocardial infarction during the first aid. The insurance company believes that the death of the insured is not an accidental injury-caused by a car accident, and the insurance company will not be liable for compensation. Although the car accident makes the insured in an abnormal situation, its relationship with the death result is interrupted by the intervening myocardial infarction factor, which plays a decisive role in the death result independently, so it is interrupted by multiple factors. However, in another similar case, the insured in personal accident insurance, a group, had a history of tuberculosis, had surgery and had mycobacterium tuberculosis in their bodies. One day, he accidentally fell down, causing the upper arm muscle to rupture and the wound to be infected, causing tuberculosis in the right shoulder joint to spread to the brain and kidney, and died after treatment. In this case, the intervention of mycobacterium tuberculosis is not an independent cause, and its appearance did not prevent the fall from playing a role and cut off the direct connection between the wound and death. The insured person died under the simultaneous and continuous action of two reasons, but the existence of mycobacterium tuberculosis in the body or falling down will not lead to the death of the insured person. So two reasons are the direct reasons for coexistence.

Under the coexisting proximate cause, there are both underwriting proximate cause and non-underwriting proximate cause. How to determine the insurer's liability? Generally speaking, if we can distinguish their respective losses, the insurer is only responsible for the losses caused by the insured's proximate cause. When it is inseparable, there is controversy. Some people think that the insurer is not responsible, while others think that the insurer is fully responsible. Generally speaking, it is appropriate for judges to allocate in proportion at their discretion. In this regard, it was further suggested that it was necessary to distinguish whether the proximate cause of non-insurance was a risk not mentioned in the insurance policy or an excluded risk. The author basically agrees with this view, because since losses are inseparable, it is very difficult to allocate them. How to balance the rationality of this ratio is very difficult. Therefore, if the non-insured proximate cause is not mentioned in the policy and the risk is not clearly excluded, the insurance company should bear all the responsibilities. For example, a ship named "Miss J.J." was insured regularly and was damaged during a voyage during the insurance period. The insurance company refused to pay compensation because the ship was unseaworthy due to design defects. The court held that the loss was caused by unseaworthiness and bad weather, so there were two proximate causes. Bad weather is an insurance risk. Without the insured's knowledge, unseaworthiness caused by design defects is not an excluded risk of term policy. So the insurance company should compensate. However, if the uninsured proximate cause is explicitly excluded from the insurance policy, the insurer is completely exempted from liability. This principle was confirmed in Wayne Tank Pump Company v. Liability Insurance Company 1973. The plaintiff designed and installed equipment for storing and transporting chemical raw materials in other people's factories producing plastic products. The plaintiff has public liability insurance to cover other people's property losses caused by accidents. The exclusion clause in the policy stipulates that the insurer is not responsible for the losses caused by the nature of the goods shipped by the insured. During the insurance period, the equipment ran unattended the night before the trial operation, causing a fire and burning down the factory. After the plaintiff compensated the factory for the loss, he filed a claim with the insurance company. The court held that the flammability of the goods (chemical raw materials) was not the only direct cause of the loss, and improper manual operation within the insurance scope and the nature of the goods interacted to cause the loss. However, the flammability of the goods is an exception, and the insurance company is not liable for compensation. ③

Perhaps we can draw a rule that the effectiveness takes precedence, that is, the excluded liability is superior to the underwritten liability, and the underwritten liability is superior to the unmentioned liability. When there are exclusions in multiple proximate causes, the exclusions apply to all loss results first, and the insurer does not bear any responsibility; When there are multiple proximate causes, there is no exclusionary liability but underwriting liability, and underwriting liability is applied first and applies to all loss results, and the insurer is fully responsible. Of course, in a specific case, if there are great differences in the force of multiple proximate causes on the damage results, it is best to weigh them based on the principle of fairness and justice.

Third, the proof of causality.

As mentioned above, the premise of the application of the principle of proximate cause is the determination of the causal relationship between the cause danger and the damage result, and between the multiple cause dangers. It is indisputable that the proof of causality is generally borne by the plaintiff according to the principle of "whoever advocates is responsible" in the Civil Procedure Law. However, it is controversial to what extent the plaintiff should complete the burden of proof. There is a view that "it is required to fully prove the existence of causality in order to fully reveal the internal relationship between cause phenomenon and result phenomenon". (4) With the Supreme People's Court's "Several Provisions on Evidence in Civil Procedure" establishing superior evidence rules of judicial discretion and burden of proof, this view has lost its positive legal basis.

First of all, the applicant, the insured or the beneficiary bears a preliminary or superficial burden of proof for causality. Article 23 of the current Insurance Law stipulates: "After the occurrence of an insured accident, when the applicant, the insured or the beneficiary requests the insurer to compensate or pay the insurance money according to the insurance contract, they shall provide the insurer with the certificates and materials that they can provide to confirm the nature, causes and loss degree of the insured accident. According to the provisions of the insurance contract, if the insurer thinks that the relevant certificates and materials are incomplete, it shall notify the applicant, the insured or the beneficiary to supplement the relevant certificates and materials. " In this clause, the "cause" of the insured accident includes causality under the principle of proximate cause. According to this article, the applicant, the insured or the beneficiary obviously bears the burden of proof of causality.

Secondly, under certain conditions, the burden of proof is shifted or reversed, and the insurer bears the burden of disproof. The original insurer stipulated that the proof of the applicant, the insured or the beneficiary is not "required to fully prove the existence of causality, so as to fully reveal the internal relationship between the cause phenomenon and the result phenomenon", but only limited to providing "available proof and information". If the applicant, the insured or the beneficiary provide "available" certificates and materials, and the insurer still refuses to bear the insurance liability, the burden of proof will fall to the insurer at this time. However, what is "available" is not clearly defined in the current Insurance Law. The Supreme People's Court is obviously aware of this. In Article 16 of the Interpretation on Several Issues Concerning the Trial of Insurance Disputes (Draft for Comment), it is stipulated: "The certification materials stipulated in the first paragraph of Article 23 of the Insurance Law include: insurance agreement, insurance policy or other insurance certificates, paid insurance premium certificates, insurance property certificates, insured identity certificates, insurance accident certificates, loss degree certificates of the insured object or personal disability degree certificates and claims settlement. Unless otherwise agreed in the contract, the contract shall prevail. If the applicant, the insured or the beneficiary cannot provide the documents specified in the preceding paragraph or agreed in the contract, the insurer shall notify them to supplement them. ┅┅┅ If it is really difficult for the applicant, the insured or the beneficiary to provide the documents specified in the preceding paragraph or the documents agreed in the contract, the insurer shall bear the burden of proof. ┅┅ "The" insurance accident certificate "here includes the proof of each causal relationship under the principle of proximate cause; For the "can provide", it is stipulated from the opposite side that the applicant, the insured or the beneficiary provide "if it is really difficult, the insurer shall bear the burden of proof". From "what can be provided" to "it is indeed difficult", the conditions for inversion of proof are actually strict, which increases the burden of proof of the insured, the insured or the beneficiary. Of course, what is the "real difficulty" is still a thorny issue. In specific judicial practice, the court can exercise judicial discretion in allocating the burden of proof according to the provisions of Article 7 of Several Provisions on Evidence in Civil Procedure, and determine the conditions for the inversion of the burden of proof according to the principles of fairness, good faith and taking into account the parties' ability to provide evidence. If it is determined that the conditions for the inversion of the burden of proof are not yet met, and the proof of the applicant, the insured or the beneficiary is insufficient to prove that there is a causal relationship between the cause danger and the damage result of the insured accident, or between multiple causes danger, the applicant, the insured or the beneficiary shall be directly ordered to bear the adverse consequences, otherwise, the burden of proof is inverted and the insurer shall bear the burden of disproof. Of course, even if the applicant, the insured or the beneficiary has completed the burden of proof, the insurer can take the initiative to exercise the right to disprove.

Third, according to the rule of evidence superiority, the proof and counter-evidence of both parties are determined. When the applicant, the insured or the beneficiary have completed the burden of proof, and the insurer presents evidence to the contrary, but neither side has sufficient basis to deny the evidence of the other party, the court shall, in combination with the case, judge whether the evidence provided by one party is significantly more probative than that provided by the other party, and confirm it with more probative evidence. At this time, if it is difficult to identify the disputed facts because the probative force of the evidence cannot be judged, the people's court shall make a judgment according to the rules on the allocation of burden of proof.

For example, in April 2000, after a commercial house in Shanghai was mortgaged, a home insurance contract was signed with an insurance company. 200 1,1/With the approval of the China Insurance Regulatory Commission, the Shanghai Insurance Industry Association issued an announcement to uniformly increase the repayment guarantee insurance in the original home insurance from now on, stipulating that if the insured dies or is disabled due to accidental injury, the insurer shall bear the repayment responsibility, and it is clear that the extended clause will be automatically applied to the original mortgaged house insurance policy. The member companies announced in the announcement include the defendant, but the defendant did not inform Shen. June 5438+October 2002 10, Shen was taken to hospital for a fall. According to the emergency medical records, the patient stated that he had a sudden headache and vomited more than 1 hour after riding a bicycle, and was diagnosed as "cerebral hemorrhage". He was admitted to the hospital, diagnosed with "cerebral hemorrhage" and died soon. The diagnosis of death is still "cerebral hemorrhage". After Shen's death, his family did not inform the insurance company and his body was cremated. In March 2002, Shen's family asked for compensation after knowing the announcement of the insurance industry association. The defendant found out that Shen had an MRI examination before falling from the building, and the hospital's diagnosis opinion was "right temporal lobe hematoma, considering the possibility of vascular malformation, it is recommended to further examine this area", so he refused on the grounds that Shen died of cerebral hemorrhage. (2) (5) Obviously, this case belongs to a continuous situation, but is it "headache after falling" or "headache after falling"? If it is the former, the fall is the proximate cause, which belongs to the underwriting risk and the insurance company should pay for it. On the other hand, if Shen has a special constitution, such as vascular malformation, the insurance company may not be responsible if it can be proved that it is caused by a disease attack. In this case, after Shen's body was cremated, the only evidence available was the medical record provided by the plaintiff, which recorded the statement that the patient had a headache after falling, which was caused by cerebral hemorrhage. The plaintiff cremated the body because the defendant failed to fulfill the obligation of informing after the original mortgage insurance contract was expanded by announcement, and the fault responsibility was on the defendant. Therefore, it should be considered that the plaintiff has provided "the proof that he can provide" and further provided "there is indeed difficulty", and the burden of proof has shifted or reversed to the defendant. Although the defendant provided the diagnosis opinion of MRI before his death as a counter-evidence, the evidence was not enough to deny the emergency medical records provided by the plaintiff after Shen's accident, and the evidence of both sides was equally probative. Therefore, according to the rule of evidence superiority, the defendant whose burden of proof is reversed should be ordered to bear the adverse consequences.

(Author: Fujian Higher People's Court)