It is fundamental to the concept of insurance that it only
insures a fortuity not a certainty. There is no cover under the
policy if the insured deliberately damages the insured property.
But what if the insured is suffering from a mental illness?
The decision of the English High Court in Porter v
Zurich  EWHC 376 sets out, for the first time, the
degree of mental illness required for an insured to recover under a
policy where the insured deliberately damages the insured
Mr Porter was suffering from mental illness. He deliberately set
fire to his property to commit suicide. He escaped during the fire
and survived. The Court held that the insured must meet the test
for criminal insanity as set out in the
M'Naghten's case, namely:
'... at the time of committing the act, the party accused
was labouring under such defect of reason, from disease of the
mind, as not to know the quality of the act he was doing; or, if he
did know it, that he did not know what he was doing was
It was not sufficient to show that the insured suffered from a
pre-existing and persisting delusional disorder in association with
depressive episodes at the time.
On the psychiatric evidence, the Court found that Mr Porter knew
what he was doing and that his actions were wrong. He failed to
prove that he was criminally insane and he could not recover under
the policy for damage to his property.
Phillips Fox has changed its name to DLA Phillips Fox
because the firm entered into an exclusive alliance with DLA Piper,
one of the largest legal services organisations in the world. We
will retain our offices in every major commercial centre in
Australia and New Zealand, with no operational change to your
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This publication is intended as a first point of reference
and should not be relied on as a substitute for professional
advice. Specialist legal advice should always be sought in relation
to any particular circumstances and no liability will be accepted
for any losses incurred by those relying solely on this
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Contractors and principals should ensure they have appropriate insurance coverage instead of relying on indemnity clauses.
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