Whelan v Dixon

• Jurisdiction: Ireland
• Judgment Date: 01 January 1963
• Date: 01 January 1963
• Court: Supreme Court

(S.C.)

Whelan

and

Dixon

Decree against owner of vehicle - Judgment wholly unsatisfied - Application for leave to execute judgment against insurers - Indemnity in policy subject to limitations - Repudiation of liability by insurers - Onus of proof - Whether matter should be determined on motion - Whether judge should direct issue to be tried on oral evidence - Road Traffic Act, 1933, s. 78.

A decree was obtained in the High Court against the owner of a mechanically propelled vehicle which decree was wholly unsatisfied. The owner of the vehicle was insured with an insurance company for the purpose of his business (stated in the policy to be that of a "greengrocer and no other for the purpose of the insurance") or for social, domestic and pleasure purposes or necessitated by the overhaul upkeep and for repair of the vehicle. The plaintiff applied in the High Court by way of notice of motion to the insurers for leave to execute the judgment against the insurers. The insurers repudiated liability on the ground that at the time of the accident the car was being used for a purpose other than those covered by the policy. Held by Murnaghan J., that the onus of proof of establishing that the car was being used within the limitations of use at the time of the accident rested on the claimant and that it was not sufficient merely to show that the car, the driving of which had caused the damage was one covered for certain risks by the insured and that the claimant had failed to discharge this onus. On appeal, by the plaintiff it was held, by the Supreme Court, inter alia,that judgment must be for a sum against the liability for which the owner or driver is insured and the claimant must establish this. PerLavery J. (who...