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					TRINIDAD AND TOBAGO

                          IN THE HIGH COURT OF JUSTICE

H.C.A. No. 4219 of 1990

                                          BETWEEN

       GRELL-TAUREL LIMITED                               PLAINTIFF

                                            AND

1.     THE CARIBBEAN HOME INSURANCE COMPANY LIMITED

2.     AMERICAN LIFE & GENERAL INSURANCE COMPANY
       TRINIDAD LIMITED

3.     TRINIDAD AND TOBAGO INSURANCE LIMITED

4.     N.E.M. (WEST INDIES) INSURANCE LIMITED

5.     THE NEW INDIA ASSURANCE COMPANY (TRINIDAD AND
       TOBAGO) LIMITED

6.     CARIBBEAN INSURANCE COMPANY LIMITED

7.     CARIBBEAN COMMERCIAL INSURANCE COMPANY LIMITED

8.     UNITED INSURANCE COMPANY LIMITED

9.     COLONIAL FIRE & GENERAL INSURANCE COMPANY
       LIMITED

10.    MARITIME GENERAL INSURANCE COMPANY LIMITED

                                                         DEFENDANTS
BEFORE THE HONOURABLE
MR. JUSTICE W. KANGALOO

Appearances:
Mr. M. Daly S.C., Mr. P. Rajkumar
Mr. C. Hamel-Smith for the Plaintiff
Mr. M. Beloff Q.C., Mr. R. Nelson S.C.,
Mr. D. Patrick for the Defendants



                                                                 Page 1of 26
                                            AND

H.C.A. No. 4123 of 1990

                                         BETWEEN

        JOSEPH NAHOUS & COMPANY LIMITED                                  PLAINTIFF

                                            AND

1.     MARITIME GENERAL INSURANCE COMPANY LIMITED

2.     CARIBBEAN HOME INSURANCE COMPANY LIMITED

3.     TRINIDAD AND TOBAGO INSURANCE LIMITED

4.     GUYANA AND TRINIDAD MUTUAL FIRE INSURANCE
       COMPANY LIMITED

5.     UNITED INSURANCE COMPANY LIMITED

                                                                 DEFENDANTS

BEFORE THE HONOURABLE
MR. JUSTICE W. KANGALOO

Appearances:
Mr. M. Daly S.C., Mr. P. Rajkumar
Mr. C. Hamel-Smith and Mr. J. Aboud for the Plaintiff
Mr. M. Beloff Q.C., Mr. R. Nelson S.C.,
Mr. D. Patrick for the Defendants


                                       JUDGMENT

       “The city died this weekend. As the woman on Independence Square, Port of Spain said
almost matter-of-factly: „we ent have no town again!‟.....call a familiar store - Y. de Lima‟s?
Standards? Man Hole? Maraj Brothers? Superstar? Huggins? sacked and pillaged. Frederick
Street, Henry Street, Charlotte Street - the hub of commercial Port of Spain - had become a
shanty-town of broken glass and debris. Overhead an ugly grey cloud of smoke persisted. It had


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been there since the insurrection broke on Friday afternoon, widening during the hours of the
night and if the fires were becoming spent by their own strength and the efforts of the Fire Services
up to yesterday some were still smoldering. Overnight, people were becoming consumer junkies.
Wonderingly, the first targets were shoe stores, the mainly young bands of looters risking flying
glass and flying fists, ignoring the constant crack of warning gunfire to ransack boxes of
name-brand sneakers - Nike, Puma, Reebok, Avia and the rest, snatching indiscriminately, so that
many, counting their booty on the streets found themselves with two left sides of Nikes.....
Supermarkets and electronic goods stores were also considered prime for plunder and before they
burnt Allum‟s for example, people fought for choice cuts of meat even as abandoned
meat-packages squelched underfoot. All around was greed and madness and blood too. One man
stood disconsolately in the streets, his right hand literally hanging by a thread of skin. He had
been cut by flying glass - as had been others who had ignored the danger to try to catch booty
thrown through the stores by their compatriots inside. I watched a woman crying in the street on
Saturday morning. She was not hurt. She had nothing in her hand and she was not near the scene
of any activity. What happened? I asked. She wouldn‟t or couldn‟t answer or, maybe, she just felt
it was obvious that she was crying for each and everyone of us.” - Keith Smith, Sunday Express
29th July 1990.


       The quoted article captioned „Death of a City‟ aptly and accurately describes the trauma
experienced by Port-of-Spain and its environs during the preceding two days. The weekend in
question is obviously the 27th July 1990 and 28th July 1990.


       After the city died several questions have to be answered by its post mortem examination.
Was there simply a coincidence between the death of the city as described and the insurrection of
the members of the Jamaat-al-Muslimeen (the Muslimeen) which began at approximately 5:50
p.m. on Friday 27th July 1990, which insurrection ended 5 days later with the surrender of the
insurrectionists? Is it reasonable to argue that the death of the city was in some real way connected
with the aforesaid insurrection? Or was the alleged inactivity of the police services during the
period in question a stronger link with the death of the city than was the insurrection? If the answer
to this last question is in the affirmative, on whom is the onus to prove this? Has that onus been



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discharged on a balance of probabilities? The answers to these questions would determine whether
or not the victims of the carnage, rape and pillage of the city, that is the Plaintiffs or the business
enterprises which suffered substantial losses as a result of the widespread looting can recover from
the defendants, the insurers with whom the Plaintiffs had policies of insurance, in which there was
coverage for riot damage, that is loss or damage to the Plaintiff‟s property directly caused by the
acts of persons taking part together with others in a disturbance of the public peace. The
defendants insurers on the other hand contend that in these policies of insurance, to put it as briefly
as possible for the moment, insurrection is not a risk that was covered so that the Plaintiff can only
succeed if they show that their losses occurred independently of the insurrection.


FACTS
       The facts largely agreed are that at approximately 5:50 p.m. on Friday the 27th July 1990
members of the Muslimeen bombed the Trinidad and Tobago Police Headquarters at the corner of
Sackville and St. Vincent Streets in Port-of-Spain. Within minutes the building was on fire and it
was substantially destroyed. At that time while the House of Representatives was in session at the
Parliamentary Chamber in the Red House, about 42 heavily armed members of the Muslimeen
stormed the Red House discharging their weapons. The Prime Minister and sixteen other members
of Parliament were taken hostage by the Muslimeen. Six persons in the Red House died from
gunshot wounds sustained at or shortly after the time of the initial assault. At about the same time
70 heavily armed Muslimeen under their leader, Abu Bakr attacked Television House, the home of
the only television station at the time in the country taking 26 persons hostage. The Muslimeen and
Abu Bakr took complete control of Television House and the broadcasting facilities at the
television station. The Muslimeen also captured Radio Trinidad which was housed nearby, very
close to Television House. At about 6:05 p.m. Abu Bakr appeared on television attended by armed
Muslimeen and made the following statement:-
               “Good afternoon, ladies and gentlemen, this is a news broadcast. The
       Government of Trinidad and Tobago has been overthrown. The Prime Minister               and
members of Cabinet are under arrest. The military is asked to comply and to            lay down their
weapons so that there will be no further loss of life. We are asking           everybody to go home
quietly and remain home quietly. We do not want any            looting, anybody disrupting property



                                                                                            Page 4of 26
rights or personal rights. We will take that very seriously and anybody who is guilty of any such
infringement would have to    answer to the law. We would keep you further informed as the
progress go (sic).     Thank you very much ladies and gentlemen. Stay calm.”


       At about the same time several armed Muslimeen charged into the building which housed
the only other radio station, Radio 610, dropped fire explosives and left the building. The
employees managed to extinguish the fire and Radio 610 was able to broadcast independently of
interference. Sometime after the first television broadcast by Abu Bakr extensive looting and fires
which resulted in the destruction of premises began in Port-of-Spain. By 8:00 p.m. a great deal of
looting was already taking place and there were a number of fires in Port-of-Spain. By the said
8:00 p.m. men, women and children had been streaming past the Express newspaper‟s offices at
the eastern end of Independence Square South with their hands full, shopping bags or garbage bags
brimming with looted goods. Cars and trucks drove past with heavier items such as refrigerators
and furniture. By 8:30 p.m. the looting in Charlotte Street and Queen Street was observed to be
well underway. There was serious looting in down town Port-of-Spain. People were stealing
televisions, stereo-sets, clothes, and other goods, for example „Male Box” on Charlotte Street was
already stripped clean and several shops were on fire. Looting continued throughout the night of
July 27-28. The looting occurred sporadically in an area from as far west as Carenage to as far East
as Arima. Arising out of the looting, fires, damage and destruction of business premises in north
Trinidad in the period from 27th July to 2nd August 1990 over 300 actions have been commenced
against insurance companies by businesses claiming to have suffered loss and damage. There were
no reports of any looting or fires in San Fernando. On the 28th July 1990 a State of Emergency was
declared at about 9:00 a.m. and at about 3:00 p.m. on the same day the imposition of a curfew was
announced. The Plaintiffs in these two actions have been selected as the flagships for the fleet of
litigation arising out of the events recited. The Plaintiff Grell-Taurel Limited engaged in business
from premises known as Grell-Taurel Complex at Eastern Main Road, Laventille. Its premises
were looted from about 11:00 p.m. on 27th July 1990 to 5:00 a.m. on the 28th July 1990. The
premises are located approximately 2.69 miles from the Red House. The Plaintiff Joseph Nahous
& Company Limited carried on business in adjoining buildings at 6 Charlotte Street and 38




                                                                                         Page 5of 26
Independence Square. The looting there took place during the period from the 27th July 1990 to
the 29th July 1990.


THE POLICY
       The Policy of insurance which the Plaintiffs had with the Defendants was specifically
extended by Memorandum 25 to include as covered the risk of riot and strike damage. As already
indicated above the parties agree that the loss or damage to the Plaintiffs‟ property was directly
caused by the acts of persons taking part together with others in a disturbance of the public peace,
that is to say it was prima facie riot damage within the meaning of Memorandum 25. The insurers
however contend that Special Condition 6 to Memorandum 25 sufficiently overrides that prima
facie liability, so as to enable them to deny liability under the policy. The relevant parts of
Memorandum 25 are as follows: “It is hereby agreed and declared that...the insurance under this
policy is extended to include Riot and Strike Damage which for the purpose of this extension shall
mean (subject always to Special Conditions hereinafter contained) loss of or damage to the
property insured directly caused by:


(a)    The act of any person taking part together with others in any disturbance of the       public
peace...not being an occurrence mentioned in Condition 6 of the Special
       Condition hereof....” (Emphasis mine).
Special Condition 6 reads as follows:
“This insurance does not cover any loss or damage occasioned by or through or in consequence,
directly or indirectly, of any of the following occurrences....
(a)    .............
(b)    Mutiny, civil commotion assuming the proportions of or amounting to a popular rising,
       military rising, insurrection, rebellion, revolution, military or usurped    power;


(c)    Acts of terrorism committed by a person or persons acting on behalf or in
       connection with any organisation. For the purpose of this condition,
       “TERRORISM” means the use of violence for political ends and includes any use of
violence for the purpose of putting the public or any section of the public in      fear.



                                                                                            Page 6of 26
         In any action, suit or proceeding where the insurers allege that by reason of the
         provisions of this condition, any loss or damage is not covered by this Insurance, the
burden of proving that such loss or damage is covered shall be upon the         insured.”      (emphasis
mine).


         By a consent order made on the 24th March 1998 it was ordered that for the purpose of this
action only it be accepted by both parties and the court that:


         (i)       The immediate cause of any losses which the Plaintiffs incurred was
         activities which constituted a “riot” within definition of that term set out in
         the Riot and Strikes Extension to the Policy and to which the terms of
         Special Condition 6 of the Policy are applicable;


         (ii)      The activities of the members of the Jamaat al Muslimeen referred to in the
         agreed Statement of Facts constituted “terrorism” and/or “insurrection”
         within the terms of the relevant provisions of Special Condition 6 of the
         Policy.


         The insurers‟ position is that because of this consent order and the concession by the
Plaintiffs that an insurrection occurred, they neither have to rely on nor do they rely on the
terrorism exclusion set out in Special Condition 6 above. This being the case, the issues between
the Plaintiffs and the Defendants narrowed.


The Issues
(i)      What is the nature of the onus on the defendants to evidentially bring themselves within
the excepted peril clause;
(ii)     Has the onus in (i) been discharged;
(iii)    Is there any onus on the Plaintiffs to establish that their losses occurred       independently
of the insurrection;
(iv)     If the answer to (iii) is in the affirmative, has that onus been discharged;



                                                                                               Page 7of 26
(v)      Whether or not the loss or damage suffered by the Plaintiffs was occasioned by or
         through or in consequence directly or indirectly of the insurrection.


         It has been agreed that an identical clause to Special Condition 6 has not been found in any
of the reported cases. Special Condition 6 has two elements to it (a) causation and (b) burden of
proof.


         With respect to (a) the words used “occasioned by or through or in consequence directly or
indirectly” define the type of causation required, while with respect to (b) the insurers‟ primary
position is that this is a reverse burden clause which obliges the Plaintiffs, once only the insurer
asserts reliance upon it, to show that there is no relevant connection between the insurrection and
the looting of the Plaintiffs‟ premises. The insurers further contend that this being the case, and the
Plaintiffs not having pleaded a case to enable them to discharge the burden on them, their claims
must necessarily fail. The Insurers rely on the authority of the Judicial Committee of the Privy
Council in Levy v Assicurazoni Generali [1940] AC 791 (Levy) for this proposition. The Insurers‟
alternative position on the burden of proof aspect of Special Condition 6 is that it obliges the
insurers only to raise a reasonably arguable case of relevant connection between the insurrection
and the looting of the Plaintiffs‟ premises before the burden shifts to the insured to rebut it.
Reliance is placed on the authority of Spinney’s[1948] Ltd & ors. v Royal Insurance Co. Ltd
[1980] 1 Lloyds Law Reports 406 (Spinney’s). The Plaintiffs‟ position is that whereas Levy
decides that a reverse burden provision is valid and effective, Spinney’s is consistent with it and
does give effect to this reverse burden, however the approach to the reverse burden provision
involves a construction and an application of it in a way which gives the contract commercial
efficacy. They further contend that the Spinney’s interpretation does effectively shift the normal
evidential burden but does so when the clause is triggered by the insurer satisfying an initial and
much lower, burden to raise an arguable case that the exception applies. The Plaintiffs‟ position as
I understand it is, it having been agreed that an insurrection occurred, that does not automatically
bring the exception clause into operation, but the insurers must go further and show albeit, on a
lower standard, that the Plaintiffs‟ losses were sufficiently connected to the insurrection before the
exception clause is triggered and the burden then shifts to the Plaintiffs to show that their losses



                                                                                            Page 8of 26
were not sufficiently connected to the insurrection. In fact in their submissions the Plaintiffs assert
that there is only one issue before the Court namely whether or not (on a true construction of the
Insurance Policy and on the facts as agreed and/or found by the Court), there was a sufficient causal
connection between:
(a)    the activities of the Jamaat-al-Muslimeen at the Red House and at Television House
       referred to in the agreed statement of facts; and
(b)    the losses suffered by the Plaintiffs so as to exclude such from the cover prima facie
       provided by the Riot and Strike Extensions.


In Levy the condition was as follows:
       “This insurance does not cover any loss or damage which either in origin or             extent
is directly or indirectly, proximately or remotely occasioned by or contributed to by any of the
following occurrences, or which, either in origin or extent directly or indirectly, proximately or
remotely, arises out of or in connection with any of such occurrences, namely:-
       (1)      Earthquake, volcanic eruption, typhoon, hurricane, tornado, cyclone or
       other convulsion of nature or atmospheric disturbance.


       (2)      war, invasion, act of foreign enemy, hostilities or warlike operations
       (whether war be declared or not), mutiny, riot, civil commotion,
       insurrection, rebellion, revolution, conspiracy, military, naval or usurped
       power, martial law or state of siege, or any of the events or causes which
                determine the proclamation or maintenance of martial law or state of
       siege.
Any loss or damage happening during the existence of abnormal conditions, whether physical or
otherwise, directly or indirectly, proximately or remotely occasioned by or contributed to by or
arising out of or in connection with any of the said occurrences shall be deemed to be loss or
damage which is not covered by this insurance, except to the extent that the Insured shall prove
that such loss or damage happened independently of the existence of such abnormal conditions.




                                                                                            Page 9of 26
In any action, suit or other proceeding, where the company alleges that by reason of the provision
of this condition any loss or damage is not covered by this insurance, the burden of proving that
such loss or damage is covered shall be upon the insured.”


       The appellant having suffered a loss by fire sued the respondent in the District Court of
Jaffa for 1900. The respondent company alleging that the appellant‟s claim to payment of that
sum was not covered by the policy, because one or other of the occurrences specified in sub-clause
2 of the condition existed at the time when the fire occurred, refused payment of the claim. In the
course of the proceedings a preliminary question was raised for the determination of the District
Court namely whether the onus of proving the existence of one or other of the occurrences
specified in sub-clause 2 of the condition lay on the appellant or on the respondent company. The
District Court held that the onus of proof was on the respondent (insurance) company. As a result
of the ruling when the action subsequently came on for hearing the respondent company called as a
witness on behalf of the company the Assistant District Superintendent of Police. No other witness
was called by either side. The District Court found for the appellant on the basis that the onus of
proving that abnormal conditions existed at the date of the fire was not discharged by the
respondent company which appealed successfully to the Supreme Court of Palestine. The
appellant then appealed to the Judicial Committee of the Privy Council. At page 797 of the report
the Privy Council reviews and approves of the interpretation of the condition dealing with the
reverse burden, by the Supreme Court of Palestine. It reads as follows:


       “The Supreme Court held that upon the true construction of the Condition 6
       of the policy, if abnormal conditions were alleged by the respondent company
       to have existed at the date of the fire, the onus of proving that the loss was
       covered and was not excluded by Condition 6, was on the Insured and not on
       the respondent company. The Supreme Court dealt with this in the                 following
passage (i): „In the third paragraph of the clause [i.e. of condition 6].
       The parties have expressly agreed as to the onus of proof, and I know of no             reason
why they should not do so. It is true that the primary object of a fire




                                                                                           Page 10of 26
        policy is to insure against fire, that it is often difficult to prove how a fire emanates, and
that the Company draws up the policy, and in consequence, where there is ambiguity, Courts are
inclined to construe it in favour of the insured, but there seems to me to be no ambiguity in the
paragraph. “Allege” does not mean “prove” and I would point out with all respect to the Court
below that if its              interpretation is applied this paragraph would appear to be
surplusage.... In the result, when the Company relies upon the third paragraph it is for the
insured to
        prove either the absence of the exception or that if the exception existed it did not
        occasion or contribute to the loss and that the loss did not arise out of it, or that the loss
or damage in cases where abnormal conditions existed happened independently of the existence
of such abnormal conditions‟(Emphasis mine)


        Their Lordships think this criticism of the ruling of the District Court with regard to    the
onus of proof is well founded, and that the District Court was in
        error in holding that the onus of proving that one of the occurrences specified
        in sub-clause 2 of condition 6 existed at the time of the fire was on the respondent
        company. It was placed upon the appellant by the express terms of the contract. There
can be no doubt that as a matter of agreement between parties the onus of proof            of      any
particular fact, or of its non-existence, may be placed on either      party in accordance with the
agreement made between them, (Emphasis mine).


        This is a decision of the Judicial Committee of the Privy Council and therefore binding
upon this Court. Counsel for the Plaintiffs attempted to distinguish the authority by pointing out
that the second paragraph quoted condition 6 of the policy in that case is non existent in the instant
case. To my mind this is a distinction without a difference. I say so respectfully, first, for as their
Lordships pointed out at pages 798 and 799 of the report it appeared to them plain as a matter of
construction that the abnormal conditions referred to in the second paragraph of the condition did
not refer to abnormal conditions generally, but such conditions as arise out of or in connection with
any of the occurrences enumerated in the two sub-clauses. Secondly the raio decidendi of the
authority is based as stated above on the specific interpretation of the third paragraph of the



                                                                                           Page 11of 26
condition which is identical in terms to the second paragraph of Special Condition 6 in the instant
case.


        In Spinney’s the condition was as follows: “This insurance does not cover any loss or
damage occasioned by or through or in consequence directly or indirectly of any of the following
occurrences (a)....civil war (b).......civil commotion assuming the proportions of or amounting to a
popular rising.....insurrection, rebellion, revolution, military or usurped power, or any act of any
person acting on behalf of or in connection with an organisation with activities directed towards
the overthrow by force of the Government de jure or de facto or to the influencing of it by terrorism
or violence. In any action....where the company alleges that by reason of the provision of this
Condition any loss or damage is not covered by this insurance, the burden of proving that such
loss or damage is covered shall be upon the Insured.” It was held by Mustill J. at first instance,
that the defendants could not bring the reverse burden clause in Condition 6 into play simply by
asserting that the loss was excluded by a particular exception and challenging the plaintiffs to
prove the contrary but had to produce evidence from which it could reasonably be argued that (a) a
state of affairs or an event occurred falling within an exception and (b) the excepted peril directly
or indirectly caused the loss. Mustill J. dealt with Levy very shortly at page 427 of the report by
saying “Next, there is the question how the Court should apply the reverse burden clause. The
validity of the clause is not in doubt: Levy v Assicurazioni Generali [1940] 67 Ll L. Rep. 174,
[1940] AC 791 but it should not be construed in such a sense as to make the policy unworkable. In
my judgment, the insurers cannot bring the clause into play simply by asserting that the loss was
excluded by a particular exception, and challenging the insured to prove the contrary. They must
produce evidence from which it can reasonably be argued that - (a) a state of affairs existed or an
event occurred falling within an exception and (b) the excepted peril directly caused the loss. It is
only when an arguable case of this nature is made out that the insured is required to disprove it.”
Brief though this analysis may be, there is a certain amount of commercial appeal in its pragmatic
and common sense approach. Its limitation is that it does not sufficiently deal with the Privy
Council‟s analysis of the reverse burden clause in Levy. Levy decided much more than the validity
of the reverse burden clause. It went on to analyse the application of the clause as discussed above.
Were it not for the binding effect of Levy on this court, Mustill J‟s approach would certainly have



                                                                                         Page 12of 26
been preferred, for it can hardly be the case that an insurance company merely has to allege, which
the Privy Council says in Levy is not the same as prove, an exception in a policy of insurance
which admittedly prima facie covers the loss, for the onus to shift to the insured to show that the
exception did not in fact occur or that the loss occurred independently of the excepted peril. One
would have thought that the reasonably arguable test as set out by Mustill J. in Spinney’s is the
least that can be expected of an insurance company in these circumstances. It is the conclusion of
this Court as a matter of law that the reverse burden clause in the policy of insurance is valid and
effective and that by the assertion of the insurers that by reason of the provisions of the condition,
the loss of the Plaintiffs‟ is not covered, the onus shifts to the Plaintiffs to prove either the absence
of the exception, or that if the exception existed the loss was not occasioned by through or in
consequence, directly or indirectly of the exception.          The Plaintiffs have agreed that the
insurrection (the excepted peril) occurred, it is therefore for them to prove the lack of a sufficient
causal connection between the insurrection and the loss.


The Pleadings
        In their statement of claim the Plaintiffs in paragraphs 4 and 5 set out memoranda 25 and 26
(riot and malicious damage respectively) of the policy of the insurance but not the terms of Special
Condition 6 although in effect both memoranda 25 and 26 are subject to it. In their amended
defence the Insurers in their paragraph 7B pleaded the effect of Special Condition 6 and in
paragraph 8 contend that the burden of proof is on the Plaintiff to show the exclusion does not
apply. In their amended Reply paragraph 2 thereof the Plaintiffs plead as follows:


        “With respect to paragraph 8d of the Amended Defence, the Plaintiff contends            that
where (as here) the Defendants contend that Special Condition 6 applies so              as to exclude
any loss suffered or damage sustained from the cover provided           under the Policy, initially the
burden of proof lies on the Defendants to establish a case that:-
        (i)     an event or events occurred falling within the excepted perils itemised in
        Special Condition 6 of the Policy, and




                                                                                             Page 13of 26
        (ii)    if (which is not admitted) an event or events occurred falling within the
        excepted perils itemised in Special Condition 6 of the Policy, such
        excepted peril or perils directly or indirectly caused the Plaintiff‟s loss”
It is readily apparent therefore that the Plaintiff‟s case on the pleadings is that Spinney’s applies
and they have not pleaded a positive case to show, now that it is conceded an excepted peril
occurred that is, the insurrection, that their loss was not caused even indirectly by the insurrection.
The insurers therefore contend that the Plaintiffs having gambled and lost on Spinney’s their claim
must of necessity fail.


        If however one reverts to Levy one recalls that in that case the insurers alone called the only
witness to show that one of the excepted perils occurred as a result of the ruling of the District
Court of Jaffa. The Plaintiff who suffered the loss by fire called no evidence. The Supreme Court
of Palestine found as a matter of law that the reverse burden clause shifted the onus to the Plaintiff
to either show no excepted peril occurred or if one did, the Plaintiff‟s loss was not occasioned
thereby. This conclusion in law was upheld by the Privy Council which proceeded to examine the
evidence called by the insurer, on whom there was no such onus, to determine as a matter of fact
whether or not an excepted peril occurred. The Privy Council found as a fact that none of the
excepted perils in the policy occurred despite no positive evidence of same being led by the
Plaintiff. It is for this reason that this Court finds difficulty in dismissing the Plaintiffs‟ claim
without examining all the evidence led before it, to determine as a matter of fact whether or not the
Plaintiffs have demonstrated there was no sufficient link between their losses and the excepted
peril, the insurrection.


The Evidence
        The Plaintiffs each called witnesses. The Plaintiff, Grell-Taurel Limited called Nigel
Arcia, a witness to the looting of its compound from 11:00 p.m. on the 27th July 1990 to
approximately 5:00 a.m. on 28th July 1990. This Plaintiff also called Isha Muhammad whose
evidence was to the effect that at the time he belonged to a Muslim sect which wore clothing
similar although not identical to that worn by the Muslimeen. This witness was also called to say
that he saw no sign of looting in Port-of-Spain up to when he left the city at about 6:40 p.m. on the



                                                                                            Page 14of 26
27th July 1990 and the only fire he saw was that at Police Headquarters and this when he got to
Paradise Heights, Morvant. The Plaintiff also called Inga Cornwall whose evidence again was to
the effect that from the time she left her workplace on Charlotte Street at about 6:30 p.m. to 6:45
p.m. to the time she arrived home in Belmont at about 7:45 p.m., she too saw no looting or fires in
Port-of-Spain, although she walked home. The Plaintiff, Joseph Nahous & Company Limited,
called one witness, Erwin Prescod who gave a detailed account of the looting at this Plaintiff‟s
premises between the night of the 27th July 1990 and Sunday 29th July 1990.


       The defendants filed affidavits which stood as evidence in chief of 14 witnesses, 4 of whom
West-Smith, Lee-A-Ping, Mendez and Halfhide were insurance personnel who proved that the
claims for the weekend 27th - 30th July 1990 far exceeded the claims for similar periods and
indeed for much longer periods during the preceding and succeeding years, this evidence was
uncontroverted; 4 journalists who all wrote contemporaneous eye witness accounts of what they
observed during the weekend in question, only one of whom, Cambridge was subjected to
cross-examination; 3 security guards who gave eyewitness accounts of what they observed during
the same period, one of those witnesses Godfrey Wills was cross-examined, another Darryl
Anderson is now deceased and his statement was admitted into evidence. Let me say here and now
that I put absolutely no weight on those aspects of Anderson‟s statement which tend to suggest that
there was any involvement by the Muslimeen in the looting and burning of businesses in
Port-of-Spain. I say this because he could not be subjected to cross-examination and as the
cross-examination of Godfrey Wills and the evidence of Isha Muhammad reveal, not simply
because persons wear Taj hats means that they are Muslimeen. I also put very little weight on
Anderson‟s statement generally because it conflicts in so many material aspects with the evidence
of his boss, Godfrey Wills.


       The other security guard was Mervyn Joseph, his evidence was not subjected to
cross-examination as he was unavailable for same. Again I reject any suggestion by him for the
reasons stated above, that because persons wore muslim garb or sold incense and oil they were
members of the Muslimeen. The remaining 3 witnesses for the insurers were 3 police officers,
only one of whom, Leonard Taylor, the acting Commissioner of Police during the period 27th July



                                                                                       Page 15of 26
1990 to 1st August 1990 was cross-examined and extensively so. The other police officers were
Louis Andrews and Norton Regist, the latter being an Assistant Commissioner of Police in charge
of Central, Southern and South-Western Divisions of the Police Service. Both of these officers‟
evidence was to the effect that there was no looting reported in the south of Trinidad and the police
remained in control thereof. The only other aspect of the evidence before the Court were articles
written respectively by journalists Suzanne Lopez and one co-authored by Ucill Cambridge and
Marlon Miller, together with a series of journalists accounts of what transpired on that weekend,
photographs, video tapes and transcripts thereof and two large plans of Port-of-Spain and the
east-west corridor respectively showing the locations and timing of looting.


         This evidence has to be examined against the background of Plaintiffs‟ submissions
summarised as follows:-
         1.       The losses were directly caused by activities of looters at the Plaintiffs‟
         premises at the times set out above.
         2.       The actions of the looters were entirely opportunistic and purely for private
         gain.
         3.       The relevant opportunity for looting was as a result of the lack of police presence resulting from a
                  conscious decision by police to withdraw from the performance of their duties and/or was the result
                  of the total failure of the police high command in Port-of-Spain to mobilise or deploy police in the
                  relevant area.
         4.       The decision and/or failure referred to in 3 above was notwithstanding the
         fact that the activities of the Muslimeen which are accepted to have
         constituted an insurrection had been isolated by 8:30 p.m. and contained by               9:30 p.m.
Submissions 1 and 2 would be accurate if this Court finds that there was no credible evidence of involvement by the
Muslimeen in the looting which occurred. As indicated above I cannot find such involvement on the basis of the
evidence of Anderson or Joseph. The only other witness who purported to give such evidence was Godfrey Wills. This
is to be found in paragraphs 7, 13 and 15 of his statement exhibited to his affidavit. In cross-examination when asked
who are the Muslimeen, Wills answered “I refer to the Muslimeen that is the people who wear the Taj”. He further
answered in cross-examination that he did not know that there were Muslim people who wear the Taj who are not
Muslimeen. Further in cross-examination Wills said to the best of his knowledge there are no members of the
population of Trinidad and Tobago who are Muslims who are not Muslimeen. When it was put to Wills that there was
an agreement between the lawyers in this case that the Muslimeen are members of a Muslim commune at Mucurapo




                                                                                                        Page 16of 26
Road, Port-of-Spain, he stoutly refused to accept that, insisting that the Muslim school he knew in St. Joseph was a
Muslimeen School.


         Based on this evidence elicited in cross-examination it is readily apparent that Wills‟ means of identification
of the Muslimeen left a lot to be desired, particularly as Isha Muhammad‟s evidence in cross-examination, which
appeared to be accepted by the insurers, was to the effect that all Muslims wear Taj hats with only the styles differing.
I therefore reject the evidence of Wills which seeks to involve the Muslimeen in the looting and burning of the
businesses in Port-of-Spain. There is before the Court therefore no credible evidence which can implicate the
Muslimeen in the looting which took place. I therefore agree with submissions 1 and 2 of the Plaintiffs as summarised
above. Submissions 3 and 4 as summarised above depend on this Court‟s view of the evidence given by the acting
Commissioner of Police, Leonard Taylor. As indicated before, Taylor was cross-examined at some length and it is not
unfair to the Plaintiffs to say that their means of destroying the causal link between their losses and the insurrection was
to a very large extent dependent on Taylor‟s evidence in cross-examination. In cross-examination Taylor said inter
alia:
         (a)       no attempt was made by the hierarchy of the Police Service to have the
                   men with whom it was in contact take any action (in respect of looting) on
                   the night of the 27th July 1990;
         (b)       he was unaware that any police officer went on to the streets of
                   Port-of-Spain on the night of the 27th July 1990;
         (c)       he was not aware that the army was on the streets of Port-of-Spain on the
                   night of 27th July 1990;
         (d)       no attempt was made prior to the State of Emergency at 3:00 p.m.
         (obviously referring to the imposition of the curfew) on the 28th July 1990                              to    use
any method to disperse looters;
         (e)       it was not one of the reasons for the inactivity of the police on the night
                   of the 27th July 1990, that they were engaged at Television House and the
                   Red House;
         (f)       the hierarchy of the Police Service took no decision that it would take no
                   action until the State of Emergency was declared;
         (g)       over the wireless, policemen sounded nervous about their personal safety,
                   this nervousness contributed to their staying indoors;
         (h)       he came up with no plan on the night of 27th July 1990 to relieve the firing
         upon police stations;
         (i)       his decision not to muster any forces was dictated exclusively by his                          concern
for the personal safety of policemen;
         (j)       in fighting crime, the Police Control Centre had a more vital role to play
         than Police Headquarters.


                                                                                                              Page 17of 26
These concessions in cross-examination must be compared with matters which are not in contest:
          (a)      Police Headquarters were bombed and destroyed approaching night time
          when shifts at police stations are in the process of being changed, the                         suddenness of the
bombing created difficulty in properly managing the                         situation subsequently;
          (b)      police stations were being fired upon;
          (c)      it took some time at least past 8:00 p.m. on the 27th July 1990 to set up a
                   substitute command centre at Traffic Branch;
          (d)      communication on the wireless sets of the police was difficult because of
          the number of incoming calls;
          (e)      shortly after 8:00 p.m. there was widespread looting, there were hundreds
          of people on Charlotte Street and Independence Square, looting which                            grew to more like
a Carnival setting at about 11:00 p.m. (from Prescod‟s                               evidence);
          (f)      there was some attempt by police to prevent looters later that night (see
          paragraph 5 of Prescod‟s evidence);
          (g)      the size of the police force allocated to Port-of-Spain was 200 persons;
          (h)      the police decided to give priority to the safety of the members of the                          families
of the hostages at the Red House;
          (i)      insufficiency of manpower in the police service has always been an endemic                       problem
of the Police Service;
          (j)      Besson Street police station was closest to the down town area of Port-of-
          Spain and was being shot at.
There are also the following aspects of Taylor‟s evidence which should be borne in mind:
          (a)      In answer to the question of whether the police would have been able                             to    deal
with the looting were it not for the shortage of manpower and the                              shooting     at    the    police
stations his answer was:
                            “They would have made a response, but I doubt the response that
          they made would have been effective, since it was very, very                                    widespread         in
terms of the looting - since the looting was very,                                   very widespread.”
This evidence is important when I deal with the issue of causation later.
          (b)      There was a general state of what he considered to be the breakdown of                           law and
order on the night of the 27th July 1990.
          (c)      He gave instructions to assistant commissioners on the night of the 27th
          July 1990 to try and contain the looting in the east-west corridor but he did                   not really believe
that it could be done.
Other Evidence
          In an article entitled „The Lunacy of Looting‟ by David Maynard published on the 1st August 1990, the author
says inter alia:


                                                                                                                 Page 18of 26
         “Just Madness. Fourteen hours of sheer anarchy and madness. No less. No             more reasonable way to
explain the situation to the caller after peering through        the windows of the Express for more than half-a-day.
For 14 hours since the       Imam‟s inviting pleads of „please do not loot‟. Port-of-Spain was mindlessly          pillaged,
ravaged and sacked.”


         In a video tape viewed by the Court in the presence of all parties the transcript of which is provided, Abu Bakr
is seen saying the following:
         “At 6:00 p.m. this afternoon, the Government of Trinidad and Tobago was             overthrown.      The Prime
Minister and Members of Cabinet are under arrest. We             are asking everybody to remain calm.                    The
revolutionary forces are commanded              to control the streets. There shall be no looting or interference with
persons or         property. We are having negotiations with the army, who is assisting in keeping                 the
peace. The police are commanded not to raise arms against the people”.


         Before dealing with the evidence as set out above, in light of the Plaintiffs‟ submissions as summarised above,
it may be apposite to consider as a matter of law what is the nature of the link required to be proved or disproved as the
case may be, between the insurrection and the loss of the Plaintiffs. The words of Special Condition 6 are ...... „loss or
damage occasioned by or through or in consequence directly or indirectly.‟


         In the case of Lindsay & Ors. v The General Accident Fire & Life Assurance Corporation Ltd [1914] SAR
574 the policy provided as follows:
         “The insurance does not cover loss or damage by fire during (unless it be proved              by    the    insured
that the loss or damage was not occasioned thereby) or in        consequence of invasion......” The Court of Appeal of
South Africa at pages 596 to 598 of the report having found that the fire occurred during a state of civil
         commotion said “Now the onus cast upon the Plaintiffs is that of proving a          negative and it is difficult
to see how it can be discharged except by satisfactory           evidence as to how the fire originated. If for example
the plaintiffs had established that the loss was due to an accident, or that the building had been set             on    fire
by some person in order to gratify a long-standing spite, having no        connection with the disturbance it might be
said that proof has been given that the loss had been occasioned by something else than civil commotion. But in the
         absence of evidence to show how the fire originated it is difficult to see how the onus      cast    upon       the
plaintiffs can be discharged....it lies upon the Plaintiffs to   prove affirmatively that the fire was not occasioned
thereby and I feel constrained        to hold that this onus has not been discharged by them...... For as I have already
         observed the words civil commotion refer to a state or condition and if the fire    arose incidentally out of
that state, it would in my opinion be quite correct to say       that it was occasioned thereby. The whole language of
the exception seems to me to support that view.           I do not think that the words „in consequence of‟ and
         „occasioned by‟, which in my opinion mean much the same thing, are limited to cases of damage caused
directly by a mob but rather that they would include any         loss arising incidentally out of a state of civil
commotion.”


                                                                                                             Page 19of 26
          In the case of Pillay v General Insurance Co [1985] LRC 162 the words of the exception clause of the
insurance policy to be construed were “arising from inter alia.....looting.” At page 167 the learned Chief Justice had
this to say: “was there any connection between the burglary and these events (rebellion, civil commotion and looting).
Mr. Shah (on behalf of the insurers) contended that the events caused or contributed to the Plaintiff‟s loss because the
country was in disorder, the police could not carry out normal duties, the armed forces were divided by fighting each
other, within such an environment it was made a lot easier for a shop to be burgled as there were no passersby or
police who could come to the rescue.... Mr. Boullé (on behalf of the Plaintiff) submitted that the fact that the mutiny
made it easier for persons to commit offences does not provide a sufficient link in the chain of causation”. At page 168
the learned Chief Justice rejects the Plaintiff‟s contention by saying:
          “It appears to me that the Plaintiff‟s shop on the night of the 17th August was a scene of tumult, of theft
and forcible entry, of violence and disturbance of the public peace, which to a layman as well as to a lawyer might
well be said to have          directly caused the loss and damage he suffered; but if such loss was not directly
          caused, it was certainly indirectly caused by or contributed to or arose from a       rebellion, civil commotion
or looting which brings it within the exception in the insurance policy and the Plaintiff cannot therefore recover
against the         defendant.”
          These authorities demonstrate that the words of Special Condition 6 which deal with causation indicate, that
were it not for the reverse burden of proof, the insurers would only have had to prove that the Plaintiffs‟ losses arose
incidentally out of the excepted peril, the insurrection, to bring themselves within the exception clause. It appears to me
that the word „incidentally‟ is indicative of a very low threshold of proof, so that even if the insurrection merely
provided the opportunity for persons to loot and destroy the Plaintiffs‟ premises even for private gain, that is sufficient
to satisfy the test of „incidentally‟.


          There being a reverse burden of proof on the Plaintiffs, the converse of an “incidentally” test is the standard
the Plaintiffs have to reach in order to discharge the onus of proof on them. Bearing in mind that this is a civil matter,
and that the standard of proof required of the Plaintiffs is on a balance of probabilities, it is my view that the Plaintiffs
have to discharge the onus of showing from the evidence, that their losses on a balance of probabilities had no real or
material connection with the insurrection. It is with this onus in mind that the evidence as set out above needs to be
examined.


          The Plaintiffs contend that their concession as to the occurrence of the excepted peril, insurrection, is limited
to the activities of the Muslimeen referred to in the agreed statement of facts. These in brief would be the bombing of
police headquarters, the storming of the Red House and the taking of hostages there, the capture of Radio Trinidad and
Television House and the announcements of Abu Bakr therefrom and the attempted capture of Radio 610. It is
therefore contended that the losses of the Plaintiff must be linked causally with these incidents. From the agreed
statement of facts the bombing of Police Headquarters as a one-off event, Radio 610 was not captured and the activities




                                                                                                              Page 20of 26
at Television House and the Red House, the two theatres of activity of the Muslimeen were isolated and contained by
9:30 p.m. on the 27th July 1990, while the looting at the Plaintiffs‟ premises began at about 11:00 p.m. on that night.


         With respect, this Court finds this approach both myopic and microscopic. Trinidad and Tobago is a country
not known for political upheavals. Apart from a revolt in 1970, this country has a history of peaceful and orderly
transfer of power from one government to another. The activities of the Muslimeen on the evening of the 27th July
1990 as set out above were traumatic and terrifying for the entire country including the Plaintiffs and the Defendants.
As has been set out in the numerous articles of the various journalists exhibited in this Court, confusion, chaos, mayhem
and anarchy reigned supreme. Sheer madness and lunacy were the order of the day. It is true that the army reacted with
exemplary alacrity, efficiency and competence and in all probability saved this country from being consigned to the
ignoble and ignominious category of nations ruled by armed dictators, notwithstanding the reassuring promise of free
and fair and free from fear elections within 90 days by the leader of the insurrection. Does this mean that the Plaintiffs
have proved that by comparison, the relative inactivity of the police was the real connection between the Plaintiffs‟
losses and the insurrection? Is it fair to place the police service under the microscope with the benefit of perfect
hindsight and examine in minute detail their activities on the night in question to see whether they measured up to a
perfect police force? The Police Headquarters were bombed, the sentry on duty was killed, police stations were being
fired upon, there was an endemic shortage of policemen in the service, communications were difficult, the police were
vastly outnumbered by the insurgents and the looters, a state of emergency was not declared for approximately 15 hours
after the initial attack, a curfew order was not imposed until a further 6 hours had elapsed, most of the destruction in
Port-of-Spain had already occurred even before the State of Emergency was declared. Trinidad and Tobago was in the
clutches of the International Monetary Fund, austerity measures were in place, there was high unemployment at 22%,
the steepest rise in the price retail index in 5 years had occurred in the previous year, 1989. In this setting a heavily
armed saviour appears on national television (television sets were owned by 84.7% of households in Trinidad and
Tobago) and announces that the Government is overthrown, the revolutionary forces are commanded to control the
streets, the army is assisting in keeping the peace and the police are commanded not to raise arms against the people. Is
this not the perfect recipe for the absolute wanton destruction of Port-of-Spain that occurred in the next 14 hours? Can
it realistically be said that the losses of the Plaintiffs in this scenario had no real connection with the insurrection? Can
it be said that the Plaintiffs have even begun to discharge the onus on them of showing that in this scenario their losses
had no real connection with the insurrection? These last three questions I pose but rhetorically. The insurers on the
other hand have by a preponderance of evidence demonstrated that the Plaintiffs‟ losses were caused if not directly,
indirectly by the insurrection.


         In the case of The Coxsworld [1942] AC 691, the House of Lords decided that proximate causation does not
mean the last event in time, the choice of the real or efficient cause from out of the whole complex of the facts must be
made by applying commonsense standards. Causation is to be understood as the man in the street, and not as either the
scientist or the metaphysician would understand it. Cause here means what a business or seafaring man would take to
be the cause without too microscopic analysis but on a broad view.


                                                                                                              Page 21of 26
          The insurers have relied inter alia, on the journalists accounts, the proximity of the businesses first looted to
the insurrection at the Red House, the proximity in time of the looting with the announcements by Abu Bakr and the
general disorder shortly after the insurrection began. These facts together with the other observations of this Court on
the evidence before it, show a real and substantial connection between the Plaintiffs‟ losses and the insurrection, and if
the onus were on insurers to satisfy Mustill J‟s test in Spinney’s it is the view of this Court that they have
overwhelmingly done so.


          At the end of the day perhaps this Court may arrogate unto itself some form of judicial licence and borrow the
words of Mustill J. in Spinney’s at page 442, substituting its own words to fit the context and facts of the instant case
and say that the Plaintiffs have to face the assertion that the turbulence and collapse of public order attendant upon the
insurrection permitted and even encouraged acts of looting and vandalism never before witnessed in Trinidad and
Tobago, of which the Plaintiffs‟ losses are examples. Unless rebutted this would in my view be sufficient to establish
that the loss was occasioned indirectly, if not directly, by, through or in consequence of the insurrection. This assertion
appears to me to be justified on the facts and in any event I cannot see any basis on which the Plaintiffs have even begun
to rebut it.


          I have decided these cases as set out earlier on the basis that Levy is binding on me, but even if I am wrong on
that issue and the true test is that of Spinney’s which I have also indicated is preferable, the end result would be the
same. The insurers have demonstrated that they have satisfied that test and the Plaintiffs have not been able to discharge
the burden which then shifted to them.


          Given my conclusion on the applicable law and the evidence adduced before this Court, I can see no material
difference between the case of Grell-Taurel Limited and that of Joseph Nahous & Company Ltd. Even though the
looting in the latter did not cease until Sunday 29th July 1990, the Plaintiff has not discharged the onus of proof on it,
even on the Spinney’s test to show that its loss was not incidental to the insurrection.


          In the circumstances, it is the opinion of this Court that Special Condition 6 of the policies of insurance
applies, the Plaintiffs‟ losses are therefore not covered. Both actions are dismissed with costs to be taxed in the default
of agreement certified fit for two senior and one junior counsel in each of them.


          Dated this 18th day of September, 1998.



                                                                                                   W. KANGALOO
                                                                                                         JUDGE



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