Mason v Sainsbury; 19 Apr 1782

References: (1782) 3 Dougl 61, [1782] EngR 37, (1782) 3 Doug 61, (1782) 99 ER 538
Links: Commonlii
Coram: Lord Mansfield CJ, Buller J
A claim was made upon insurance after a riot. The court asked asked ‘Who is first liable?’ This was not an issue of chronology but of establishing where the primary responsibility lay to make good the loss. The Act laid the primary responsibility with the inhabitants of the hundred, and it did not matter that the insurer had indemnified the insured. Lord Mansfield said: ‘The facts of this case lie in a narrow compass. The argument turns much on want of precision in stating the case, as most arguments do. The office paid without suit, not in ease of the hundred, and not as co-obligors, but without prejudice. It is, to all intents, as if it had not been paid. The question, then, comes to this, can the owner, having insured, sue the hundred? Who is first liable? If the hundred, it makes no difference; if the insurer, then it is a satisfaction, and the hundred is not liable. But the contrary is evident from the nature of the contract of insurance. It is an indemnity. Every day the insurer is put in the place of the insured. In every abandonment it is so. The insurer uses the name of the insured. The case is clear: the Act puts the hundred, for civil purposes, in the place of the trespassers; and, upon principles of policy, as in the case of other remedies against the hundred, I am satisfied that it is to be considered as if the insurers had not paid a farthing.’
Buller J said: ‘The better way is to consider this as a contract of indemnity. The principle is, that the insurer and insured are one, and, in that light, paying before or after can make no difference. I am, therefore, clearly of opinion, that the hundred cannot avail themselves of this defence.’ and ‘It has been admitted, and rightly, that the hundred is put in the place of the trespassers.’
Willes J said: ‘I am of the same opinion . . The hundred is not answerable criminally, but they cannot be considered as free from blame. They may have been negligent, which is partly the principle of the Act.’
Statutes: Riot Act 1714
This case is cited by:

  • Cited – Simpson & Co -v- Thomson HL ((1877) 3 App Cas 279)
    The House discussed the extent of an insurer’s right of subrogation: ‘My Lords, these authorities seem to me to be conclusive that the right of the underwriters is merely to make such claim for damages as the insured himself could have made, and it . .
  • Cited – Caledonian North Sea Ltd -v- London Bridge Engineering Ltd and Others HL (House of Lords, Times 13-Feb-02, Bailii, [2002] UKHL 4)
    Substantial personal injury claims had been settled following the Piper Alpha disaster. Where a contractual indemnity had been provided under a contract, and insurance had also been taken out, but the insurance had not been a contractual . .
  • Cited – Yarl’s Wood Immigration Ltd and Others -v- Bedfordshire Police Authority CA (Bailii, [2009] EWCA Civ 1110, [2010] 2 WLR 1322, [2010] 2 All ER 221)
    The claimant sought to recover the costs of damage to their centre following a riot, saying that under the 1886 Act, they were liable. It appealed against a ruling that they were unable to claim as a public authority, saying that the 1886 Act was . .

Last Update: 11-Sep-15 Ref: 191156