A German bomb dropped on England exploded 79 years later. The policy had a war exclusion clause. The claimant blamed the army. A judge found the argument ‘nuanced’

By Wendy Pugh

War exclusion impacts can endure long after a conflict, and England’s University of Exeter has found this out the hard way after it submitted claims for damage caused by the botched disposal of a World War II bomb.

The “controlled detonation” of the bomb – dropped 79 years earlier by Germany’s Luftwaffe – was performed by army specialists.

The university blamed the bomb disposal experts, who were aiming to dispose of the bomb with minimal impact but instead triggered a full-force blast. The university’s halls of residence were affected, and students had to be temporarily rehoused.

But the insurer, Allianz, said the policy’s war exclusion clause means the university wasn’t covered.

The England and Wales Court of Appeal found in favour of Allianz, but not without admitting the complexities of causation.

Lord Justice Coulson, in a decision supported by Lord Justices Snowden and Lewison, says “unguided gut feeling, as it is called in one of the authorities, may suggest that the damage caused by a controlled detonation 79 years after the bomb was dropped, and 76 years after the war ended, was not ‘occasioned by war’.

“But those same authorities make clear that the approach to legal causation is more nuanced than that, and subject to specific rules and principles.”

Exeter in southwest England was bombed in April and May 1942 when historic cities rather than larger industrial centres were targeted in the first of the so-called Baedeker raids, named after a series of popular German guidebooks.

One of the 1000kg SC1000 thin-cased high-explosive bombs – nicknamed the Hermann after German military leader Reichsmarschall Hermann Goring – fell onto farmland on Exeter’s outskirts and lay undisturbed until it was found by construction workers in February 2021.

An explosive ordnance disposal team from the army was called in, a 400-metre safety cordon set up, trenches dug to limit ground shock and a metal-fenced “sand-box” created. Residents from nearby properties, including student accommodation built around 2012 and some 200 metres away from the bomb site, were evacuated.

The work was carried out just metres from where the bomb was found, because transporting it through built-up areas to a disposal site would have been too risky given its age and condition, and uncertainty over whether it was booby-trapped.

The plan involved blowing open the bomb casing to expose the internal explosive, without actually setting it off. But the controlled detonation on February 27 2021 released the full explosive load.

Exeter University maintained the attempted “low order technique (LOT)” detonation was the key cause of damage to its buildings, rather than the dropping of the bomb, and impacts should be covered by the policy.

Act of war: the court found that the bomb “did what it was always meant to do”

It also argued it wasn’t plausible to assert the war exclusion was intended to apply to long-past historical events. “Colourful analogies” were drawn by the university’s legal team equating the situation with loss and damage caused by a spear left over from the Battle of Hastings, or a trench built during the English Civil War.

But the judgment is clear. It says the dropping of the bomb was an act of war, and the “mere fact” that it exploded long after the end of the conflict, does not automatically rule out operation of the exclusion.

Lord Justice Coulson says a line can’t be drawn “arising simply out of the passage of time”.

In looking at the cause of damage and the wording, he applied the “Wayne Tank” principle, taken from an often-cited 1970s UK case. In that approach, when there are two causes of about equal impact, and one is an insured peril and the other excluded, the exclusion will usually prevail.

“The bomb that was dropped during World War II contained the explosive that did the damage to the appellant’s halls of residence,” he says. “The decision to attempt a LOT would obviously never have been made if the bomb had not been there, and remained live, in 2021.

“It might be said that, at that point, the bomb did what it was always meant to do.”
The judgment says the dropping of the bomb and its detonation represents “a classic case” of two concurrent causes of loss and damage.

“Those two causes were of approximately equal efficacy. The former was excluded, the latter not; the rule in Wayne Tank therefore dictates that the claim must fail,” he said.

University of Exeter v Allianz Insurance PLC [2023] EWCA Civ 1484