ABSTRACT
In The Trinder Case,11 Lord Justice Collins issued the caution that: ‘Nothing short, therefore, of dolus in its proper sense will defeat the right of the assured to recover …’. An element of wilfulness, a conscious determination to bring about a loss, and a design to achieve a certain result are the familiar characteristics of an act of wilful misconduct. Merely carrying out an act which is usual and expected under the contract of insurance is not such an act. For instance, in Papadimitriou v Henderson,12 a case of an insurance on war risks, Lord Goddard
held that a shipowner was not guilty of wilful misconduct even if he had tried to proceed with his contract voyage in the presence of danger. ‘There must always,’ he said, ‘be a risk of capture during a war, which is the very reason why shipowner and merchants insured against war risk’. The position, however, would be different if the shipowner had deliberately sent his ship forward in order to run a blockade. In such a circumstance, an inference may be drawn that ‘he was not endeavouring to carry out the voyage, but was endeavouring to get his ship captured, and that, of course, would be wilful misconduct’.
