Draft:Armstead v Royal & Sun Alliance Insurance Company Ltd

Armstead v Royal and Sun Alliance Insurance Company Limited
Court	Supreme Court of the United Kingdom
Full case name	Armstead v Royal & Sun Alliance Insurance Company Ltd
Argued	23 November 2023
Decided	14 February 2024
Neutral citation	[2024] UKSC 6
Case history
Appealed from	England and Wales Court of Appeal
Court membership
Judges sitting	Lord Briggs, Lord Leggatt, Lord Burrows, Lord Richards, Lady Simler
Case opinions
A defendant bears the burden of proof in respect of remoteness and if a sum due under a contract is unreasonable that sum is not foreseeable and is too remote to be recoverable from a negligent stranger
Decision by	Lord Leggatt and Lord Burrows (joined by Lord Richards and Lady Simler)
Concurrence	Lord Briggs
Area of law
English tort law

Armstead v Royal and Sun Alliance Insurance Company Limited [2024] UKSC 6 is a judicial decision of the Supreme Court of the United Kingdom that addresses fundamental questions and has the potential to affect a significant number of other cases. The decision concerns pure economic loss, remoteness and the burden of proof in English tort law.

Facts

A car driver, Ms Armstead, was involved in a road traffic accident for which she was not at fault. While Ms Armstead’s car was being repaired, a car hire company hired a car to her on credit hire terms. The car hire company and Ms Armstead contracted on standard terms. A term in their contract, clause 16, provided that, if the hired car was damaged, the hirer (Ms Armstead) was to pay the daily credit hire rate, up to a maximum of 30 days, to the hire company to compensate for their loss of use while their hired Mini was out of use.

While Ms Armstead was driving the hired car, it was hit by a negligently driven van. Ms Armstead brought a claim against the van driver’s insurers, RSA Insurance Group ("RSA"). By her claim, which was funded and pursued in her name by the credit hire company, Ms Armstead sought not only damages for the cost of repair of the hire car but also for a sum under clause 16 that she was contractually liable to pay the credit hire company for its loss of use. It was common ground that the daily rental hire rate that Ms Armstead sought to recover (the “credit-hire” rate) was significantly higher than the standard (or “basic”) car hire rate of a vehicle hire company that was not operating its business on credit hire terms.

Previous decisions

The claim was allocated to the small claims track in the County Court (England and Wales) and was tried on 1 July 2019 at Walsall before Deputy District Judge, who dismissed the claim on the ground that Ms Armstead had no proprietary interest in the hire car.

On Ms Armstead's appeal to a Recorder, RSA accepted that the fact that as Ms Armstead was in possession of the hire car, under the law of bailment as a bailee when the hire car was damaged her possession entitled her to recover compensation for the physical damage to the hire car. However, RSA said that the amount Ms Armstead claimed under her contract with the hire company for the hire company's loss of use was not recoverable because the sum claimed was not a reasonable estimate of the hire company's actual loss of use and Ms Armstead’s liability to pay this sum was, accordingly, not a reasonably foreseeable consequence of the collision. Ms Armstead's appeal was dismissed by the Recorder on this basis.

Ms Armstead appealed to the Court of Appeal, which also dismissed her appeal, on several grounds including that the pre-estimate of loss claimed under the hire contract did not represent a genuine and reasonable attempt to assess the likely losses to be incurred by the hire company as a result of loss of use of the hire car.

Ms Armstead finally appealed to the Supreme Court.

Judgment

The judges decided that a defendant bears the burden of proof in respect of the five principles that are capable of limiting recoverable damages by a claimant in tort (namely (i) the scope of the duty; (ii) remoteness; (iii) intervening cause; (iv) failure to mitigate; and (v) contributory negligence).

With respect to remoteness, the Supreme Court noted that "[62] There is a surprising absence of authority on the question of who has the legal burden of proof in relation to remoteness", holding that the legal burden of proof in respect of remoteness lies on a defendant to a claim in tort.

Similarly in respect of legal causation, which is "[61] ...the question whether an intervening event subsequent to the tort has broken the chain of causation between the tort and a particular loss", the judges noted that "... the weight of authority supports the view that here too the burden is on the defendant."

The judges also decided that, to be foreseeable and not too remote, a contractual pre-estimate of loss must be reasonable. Further in this respect, while noting that it was not necessary to decide the point, the Supreme Court indicated that if a pre-estimate of loss was found not to be a reasonable sum, “[72] …the claimant [Ms Armstead] would be entitled in this situation to recover as damages such lesser sum as would represent Helphire’s reasonably foreseeable loss of use.”

On the facts of the case, the judges held that the Claimant's appeal should be allowed as there had been no evidence as to whether the contractual pre-estimate claimed was reasonable when the matter was heard at first instance.

Burden of proof in tort

The Supreme Court held that in UK law a defendant to a claim in tort bears the burden of proof that, once it has been proved that a tort was committed and the loss claimed was in fact caused by the defendant’s breach of duty, the defendant bears the burden of proof in respect of the five principles that are capable of limiting recoverable damages by a claimant in tort (namely (i) the scope of the duty; (ii) remoteness; (iii) intervening cause; (iv) failure to mitigate; and (v) contributory negligence). The judges said "[59] In our view, the correct analysis is that once the claimant has proved that a tort has been committed and that the loss claimed was in fact caused by the defendant’s breach of duty, it is for the defendant to assert and prove that one, or more, of the principles mentioned at para 23 above applies to limit the damages recoverable by the claimant."  With respect to remoteness in particular, there was a surprising absence of authority, but the Supreme Court held that the legal burden of proof lies “[62] …on the defendant to plead and prove that loss, which was in fact caused by the defendant’s tort, is nevertheless irrecoverable because it is too remote”.

Similarly, in respect of legal causation, the judges noted that "[61]... the authorities do not speak with one voice. But the weight of authority supports the view that here too the burden is on the defendant."

Recovering contractual liabilities in tort

The case decides that, under UK law, a claimant in the tort of negligence can recover, as damages, the amount of a contractual liability that the claimant owes to a third party, when that contractual liability is incurred as a result of the defendant’s wrongful act in negligently damaging the claimant’s property (including property in the claimant’s possession), the Supreme Court however noting that "[23] Where it is shown that loss has (factually) been caused by the defendant’s breach of a duty of care, five principles are capable of limiting the damages recoverable by the claimant. They are: (i) the scope of the duty; (ii) remoteness; (iii) intervening cause; (iv) failure to mitigate; and (v) contributory negligence."

The Federal Court of Australia, in the case of Millar v Candy (1981) 58 FLR 145, came to a different conclusion in respect of amounts due under a car hire-purchase agreement, finding that the relevant hire-purchase cost in that case was not recoverable as damages in tort, as that was not loss flowing from the tortious act but was, rather, a sum payable because of the hire-purchase contract. McGregor J, saying at page 168: “The respondent's claim is for more than damages flowing from the accident; but for a sum which is referable to a collateral matter, viz. a contract between the respondent and the Hire Purchase Agreement company. That the appellant knew of the Hire Purchase Agreement does not seem to me to be determinative of the matter.”

However, the UK Supreme Court adopted the approach taken in Network Rail Infrastructure Ltd v Conarken Group Ltd [2011] EWCA Civ 644; [2012] 1 All ER (Comm) 692, holding that “[36] Where physical damage is negligently caused to revenue-generating property, the loss recoverable by the owner of the property from the person who caused the damage includes a sum payable by the owner, under an agreement with another party to compensate that party for its loss of revenue resulting from the damage, provided the sum agreed is a reasonable estimate of the likely amount of that loss”.

Applying Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd [1961] AC 388 and Hughes v Lord Advocate [1963] AC 837, the Supreme Court found that “[47(i)] …loss is too remote to be recoverable as damages if the type of loss suffered was not reasonably foreseeable at the time of the breach of duty. But if the type of loss was reasonably foreseeable, it does not matter that the precise manner in which it was incurred was not reasonably foreseeable” however, the Court found that “[47(iii)]... to fall within this reasonably foreseeable type of loss, it is necessary for the claimant’s contractual liability to reflect the loss of use of the hire company”.

Considering the contractual validity of clause 16 and the law concerning unfair terms in consumer contracts and penalties, the Supreme Court noted that "52. The link between remoteness and the law on unfair terms and penalties is that the type of loss, here a contractual liability, is only reasonably foreseeable if it really is a contractual liability. To be a valid contractual liability, as opposed to an unfair term or penalty, clause 16 must comprise a reasonable pre-estimate of the hire company’s loss of use. In contrast, a purported but invalid contractual liability is not the same type of loss and would not be reasonably foreseeable. Examining remoteness through the lens of the contractual validity of clause 16 is therefore an alternative way of explaining why it is necessary that the clause 16 sum is a reasonable pre-estimate of Helphire’s loss of use."  

While saying that it was not necessary to decide the point, the Supreme Court noted that it would not follow that no damages at all are recoverable and referred to principles arising in claims for breach of contract, saying that a Claimant could recover “[72]... such part of the loss actually resulting as was … reasonably foreseeable as liable to result from the breach” referring to Cory v Thames Ironworks and Shipbuilding Co Ltd (1868) LR 3 QB 181 and Victoria Laundry (Windsor) Ltd v Newman Industries Ltd' [1949] 2 KB 528, 539.

Bailment

The Supreme Court also addressed and reconfirmed aspects of the law of bailment, namely that a bailee in possession of property can claim damages from a stranger whose negligence results in the loss of, or physical damage to, the property, applying The Winkfield [1902] P 42) [21] and saying that "[40]... The Winkfield and other authorities recognise that the bailor and the bailee may each be entitled to sue for the loss of or damage to the property. The only restriction is that there cannot be double recovery".

Relational economic loss

The Court mentioned the concept of “relational economic loss”, saying that the term "[27] ... may confuse matters, and is best avoided, because its precise meaning is unclear. Certainly, the important underlying point is that, in general, pure economic loss is irrecoverable in the tort of negligence."

Reaction

The case was widely watched and covered by UK law firms and was followed by industry associations and insurance news outlets.

The case has been written up in leading legal texts including Charlesworth & Percy on Negligence and McGregor on Damages.

See also

• 2024 judgments of the Supreme Court of the United Kingdom