Kennedy's Arbitration, Re Sweeney and

• Jurisdiction: Ireland
• Judgment Date: 01 January 1951
• Date: 01 January 1951
• Court: High Court

High Court

In re Sweeney and Kennedy's Arbitration.

In the matter of an Agreement for Submission to Arbitration, dated the 13th July, 1948, made between DENIS SWEENEY, of the one part, and DENIS G. KENNEDY, of the other part

and in the matter of the Award made thereon, on the 14th September

1948

and in the matter of the Common Law Procedure Amendment Act (Ireland), 1856 (1)

Insurance (Motor) - Contract - Construction - Proposal form - Statement incorporated in, and made basis of, contract - Ambiguity - Statement declared to be "promissory" - Meaning of "promissory."

Special Case Stated, pursuant to s. 8 of the Common Law Procedure Amendment Act (Ireland), 1856, for the determination by the High Court of a question of law arising on the award of the arbitrator, dated the 14th September, 1948, in an arbitration between Denis Sweeney and Denis Kennedy.

The facts, as set out by the arbitrator, in the Special Case Stated, were as follows:—

"1. (a) That on the 4th day of March, 1946, Denis Sweeney (hereinafter referred to as 'the owner'), completed a proposal form for a policy of insurance, known as an 'Eclipse Motor Policy for Commercial Vehicles,' issued by Lloyds', of London, wherein, in reply to the questions in the said proposal form contained, he filled in the necessary answers. To the 9th question on the proposal form, viz., 'Are any of your drivers under 21 years of age or with less than 12 months' driving experience?' he gave the answer, 'No.'

(b) That on the 4th day of March, 1946, no driver employed by Denis Sweeney was under 21 years of age, or had less than 12 months' driving experience.

(c) That the said policy was issued by the insurers on the 18th day of March, 1946, on the basis of the said proposal form so submitted by the owner, and that the said policy was renewed from time to time and was in existence on the 7th day of October, 1947.

(d) That on the 7th day of October, 1947, when an accident occurred which caused the injury and death of one, Michael Coughlan, the vehicle involved was the property of the owner, was a vehicle described in the schedule to the said policy, and was then being driven, and was under the control of one, Thomas Sweeney, a son of the owner.

(e) That the said Thomas Sweeney was, on the 7th day of October, 1947, under 21 years of age.

(f) That on the 7th day of October, 1947, the said Thomas Sweeney had not less than 12 months' driving experience.

(g) That on the 4th day of March, 1946, the said Thomas Sweeney was not employed by the owner in any capacity and the owner then had no intention of employing him as a driver in the future.

(h) That the said Thomas Sweeney was first employed by the owner on the 11th day of April, 1946, but not as a driver of a motor vehicle.

(i) That the said Thomas Sweeney was first employed as a vehicle driver by the owner on the 17th day of June, 1946, upon which date the driving licence, No. E.891623, was issued by the Limerick County Council to the said Thomas Sweeney.

(j) That between the months of June, 1946, and February, 1947, the said Thomas Sweeney was occasionally employed as a vehicle driver by the owner, and that as from the 2nd day of February, 1947, he was regularly employed as a vehicle driver by the owner.

2. It was contended before me on behalf of the insurers, that they were not bound to indemnify the owner against the claim now made by the dependants of the said Michael Coughlan, deceased, on the ground that the answer given by the owner to the 9th question on the proposal form of the 4th day of March, 1946, was declared to be promissory and to form the basis of the contract of insurance, and that the said reply to the said question related not alone to the situation existing on the 4th day of March, 1946, but, being promissory, was false when related to the circumstances existing on the 7th day of October, 1947.

3. It was contended on behalf of the owner that the answer to the 9th question on the proposal form was accurately given on the 4th day of March, 1946, and was then true, the owner then having no intention of employing a driver who was under the age of 21 years or had less than 12 months' driving experience; that the said answer should not be related to the circumstances existing on the 7th day of October, 1947, and that consequently the insurers were bound to indemnify the owner in respect of the claim now made upon him.

I hereby award and determine that the answer given by the owner to the 9th question on the said proposal form was true and accurate on the 4th day of March, 1946; that the subsequent employment by the owner of the said Thomas Sweeney as a driver when the said Thomas Sweeney was under the age of 21 years does not render his answer to the said question untrue or inaccurate; and that the insurers are bound to indemnify the owner against his liability, if any, to the dependants of the said Michael Coughlan, deceased.

The question for the determination of the Court is whether or not I am correct in holding that the insurers are bound to indemnify the owner in respect of his liability, if any, to the dependants of the said Michael Coughlan."

A proposal form for a motor insurance policy in respect of motor lorries, the property of one, S., contained the question, "9. Are any of your drivers under 21 years of age or with less than 12 months' driving experience?"The answer given by S. (the proposer) was, "No." On the 18th March, 1946, a policy was issued and the proposal form was deemed to be incorporated therein. The proposal form also contained the following statement which the proposer was required to sign:—"I agree that this declaration shall be held to be promissory and so form the basis of the contract." From June, 1946, to February, 1947, S. did occasionally employ his son, T., who was under 21 years of age, to drive one of his lorries, and from the 2nd February, 1947, T. was regularly so employed. On the 7th October, 1947, T., while still under 21, but having over 12 months' driving experience, was in charge of a lorry when a fatal accident occurred. The insurers refused to accept liability on the ground that the terms of the policy had been broken. On a reference to arbitration, under the terms of the policy, the arbitrator held that the insurers were liable to indemnify S., and, on request, drew up his award in the form of a Special Case Stated for the opinion of the High Court, where it was

Held 1, That the expression, "this declaration shall be held to be promissory,"was referable to the facts existing at the time the proposal form was completed, and did not refer to any time thereafter.

2, That the proposer's answer to Question No. 9 did not amount to a warranty as to the age of any drivers which might be employed by him subsequent to the completion of the proposal form.

3, Where an insurer uses ambiguous language in a proposal form or insurance policy such language will be strictly construed against him by the Court.

Accordingly, the insurers were liable to indemnify S. in respect of his liability (if any) in respect of the said fatal accident.

Woolfall & Rimmer, Ltd. v. Moyle [1942] 1 K. B. 66 approved.

Glicksman v. Lancashire and General Assurance Co. [1927] A. C. 139, andProvincial Insurance Co. v. Morgan[1933] A. C. 240 adopted.

Cur. adv. vult.

The judgment of the Court was delivered by Kingsmill Moore J.

Kingsmill Moore J. :—

On the 4th March, 1946, Denis Sweeney, being anxious to insure a motor lorry, his property, signed a proposal

form for insurance which was furnished to him on behalf of a group of underwriters at Lloyds'. The form was printed and, apparently, adapted to be used in respect of any form of commercial vehicle from a delivery van to the heaviest form of tractor now using the roads. Sweeney had no say in the preparation or wording of the form which, when presented to him, was entirely the product of the underwriters. Various questions appeared on the form requesting information on matters which the underwriters desired to ascertain. Some related to the type of cover required, some to events in the past, some to the present state of affairs and one as to intended future usages. Question No. 9 ran as follows:—"Are any of your drivers under 21 years of age or with less than 12 months' driving experience?" To this Sweeney answered, "No," and the arbitrator has found as a fact that this answer correctly stated the facts on the day when the proposal form was signed. He has found further that at that date Sweeney had no intention of...