Bankers Insurance Company Ltd v South and Another
| Jurisdiction | England & Wales |
| Judge | Mr. Justice Buckley,Mr Justice Buckley |
| Judgment Date | 07 March 2003 |
| Neutral Citation | [2003] EWHC 380 (QB) |
| Docket Number | Case No: 02/TLQ/1031 |
| Court | Queen's Bench Division |
| Date | 07 March 2003 |
[2003] EWHC 380 (QB)
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Buckley
Case No: 02/TLQ/1031
Richard Lynagh QC and John Greenbourne (instructed by CMS Cameron McKenna) for the Claimant
Miss Emily Halliday of Travers Smith Braithwaite was present for the 1 st Defendant
Wyn Williams QC and Charles E. Scott (instructed by Hextall Erskine) for
the 2 nd Defendant
Hearing dates : 19 th and 20 th February 2003
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Background.
On 15 th April 1997 Kenny Brennan went into Utopia Travel ("Utopia") in Barking Road, London and booked a holiday for himself and six other young men. He indicated that they would also pay for insurance. The group departed for Ayia Napa on 13 th July 1997. On 15 th July one member of the group, the 1 st Defendant (Mr South), was unfortunately involved in a serious accident. A jet ski which he had hired and was riding was in collision with another jet ski being ridden by the 2 nd Defendant (Mr Gardner) who was seriously injured. According to the manufacturers' material jet skis are known as Personal Watercraft. They may be likened to water-going motor bikes. Larger and more sophisticated models are available which are capable of carrying more than one person.
In June 2000 Mr Gardner issued proceedings against Mr South claiming damages in respect of his injuries. Those proceedings were served on Mr South on 10 th October 2000. This action was commenced on 20 th March 2002 and the Claimant ("Bankers"), which is the underwriter of Mr South's insurance policy, claims a declaration that it is not liable to indemnify him in respect of any liability he may have to Mr Gardner for the accident. Mr Gardner was added to this action as 2 nd Defendant on 25 th April 200By Order dated 25 th June 2002 Master Leslie stayed Mr Gardner's action against Mr South pending the trial of this action.
The Claimant and Mr Gardner were each represented before me by leading and junior Counsel. Mr South was to have been represented by junior Counsel, acting on a pro bono basis, but unfortunately he had to withdraw at the last minute, for reasons wholly unconnected with either this action or Mr South. He informed me, before I sat, that Mr South and his instructing solicitors were content to continue and simply follow and adopt submissions made on behalf of Mr Gardner. That was confirmed to me in open court by Miss Halliday of Travers Smith Braithwaite, Mr South's solicitors, who was content to remain in court throughout. In the particular circumstances, including that the real issues were legal and that Mr South's interests coincided with Mr Gardner's, I agreed and the trial proceeded.
The Facts.
Few, if any, of the material facts were in dispute. Mr South put in his witness statement and was briefly cross-examined by Mr Lynagh QC for Bankers. He confirmed that the insurance had been arranged by Mr Brennan who did the booking for the group; he had paid £18 for the insurance which Mr Brennan said he had obtained, but he never saw any documentation; he believed his brother, who was also in the group, had contacted their father after the accident and he had been to Utopia; he had taken no steps to inform anyone about the accident, he assumed Mr Gardner had his own insurance; he thought the matter was over until he was served with the papers in respect of Mr Gardner's claim in October 2000; despite seeing some solicitors in October 2000, he took no steps to inform anyone or pass on any documents or correspondence; by the time he consulted solicitors in October 2000, he believed he was not covered by insurance for jet skis or water sports, but couldn't now recall why he thought that; he received correspondence from Hextall Erskine, solicitors for Mr Gardner, recommending that he should report the matter to insurers, but did not know what to do for the best, so did nothing; finally, he wrote to Bankers making a claim on 27 th April 2001, having spoken to Hextall Erskine.
Most of that evidence is apparent from the documentation and I find it as a fact save that I was not satisfied that Mr South's father had reported the accident to Utopia.
I also heard from Michelle Perry and Martin Byron, travel consultant at Utopia and operations director with Assurant Group Limited (Assurant), respectively. Bankers is a subsidiary of Assurant.
Witness statements from Derek Ketteridge and Sarah Victory were read. Mr Ketteridge is a director of Ketteridge Group Limited (Ketteridge). It is a specialist in travel insurance and administers a number of schemes. Miss Victory is a claims manager with Ketteridge.
I accept their evidence, the main features of which were as follows:
-
Ketteridge administers the Ketteridge Holidayguard Select Travel Insurance scheme which is underwritten by Bankers;
- Policies are sold through travel agents accepted on the scheme by Ketteridge, in this case it was Utopia;
- The wording of the policy is in a standard form widely used in the insurance industry;
- Ketteridge was first aware of the accident from Hextall Erskine's letter dated 23 rd November 2000;
- There was no record that Mr South, or anyone else, had reported the accident (I infer no one had);
- Ketteridge manages claims up to £5,000, above which it refers them to Bankers;
- Ketteridge exchanged a couple of letters with Hextall Erskine and referred the matter to Bankers by letter 2 nd January 2001 enclosing such correspondence as they had received;
Bankers then instructed its solicitors CMS Cameron McKenna; if the matter had been notified promptly Ketteridge would have reacted in the same manner, in particular, once it became apparent that the insured or other interested party did not accept its view that Mr South was not covered, it would have referred the matter to Bankers;
- Bankers would not have investigated the accident until resolving the dispute over cover, even through court proceedings;
- Assuming the above had occurred, Bankers, through CMS Cameron McKenna, would have started to investigate the matter more than three years ago;
- Bankers has not presently investigated the matter save to ascertain that the Cypriot Police have statements from 14 individuals, including police officers, which they are not prepared to release without court order;
- The booking procedure at Utopia (and which I find was adopted in this case) was that a customer would be asked if he wanted travel insurance when booking a holiday and if he did, the insurance certificate would be issued when final payment was made which could be later or when the tickets were collected;
- The insurance certificates in this case indicate that the holiday was booked (by Mr Brennan) on 15 th April 1997 and that the two certificates were issued on 3 rd and 10 th May 1997. Miss Perry signed the certificates;
- The policy wording is available at Utopia's premises and is attached to the insurance certificate when it is issued;
- Miss Perry understood that jet skis were not covered and if asked would have said so. She also thought that the insurance would not be valid unless the wording was attached and it always was.
The Policy Wording
After the heading "HolidayGuard ……" on the policy wording it is stated that it is arranged through Ketteridge and underwritten by Bankers. The policy benefits are listed and include the usual travel benefits such as personal accident, medical expenses, loss of possessions and so forth and, of relevance to this matter, personal liability up to £2,000,000. Under the heading "Important Points To Note" there appears:
"Read your policy in full before you travel making sure you understand exactly what we will and will not pay for under each Section."
Under the heading "What To Do If You Wish To Claim" there appears under the sub-heading "Personal Liability":
"Full details of the circumstances giving rise to the claim plus any supporting evidence will required."
Under the heading "Conditions":
"We will act in good faith in all our dealings with you.
The payment of claims following the Events occurring in your selected Geographical Area during the period of cover is dependent on you
OBSERVING THE FOLLOWING
IN RESPECT OF ALL SECTIONS
……….
d) reporting in writing to us as soon as reasonably possible, full details of any incidents which may result in a claim under the policy
e) forwarding to us immediately upon receipt, every writ, summons, legal process or other communication in connection with the claim."
Under section 9 – Personal Liability:
" For each Person-Insured we will pay for the following Events Insured
Up to £2,000,000 including costs agreed between us in writing for which you are legally liable to pay, that relate to an event caused by you and which results in:
a.
Injury …… of any person.
…….
For each Person-Insured we will not pay for:
…….
Compensation or other costs arising from accidents involving your ownership or possession of any:
Mechanically propelled vehicles and any trailers attached thereto, aircraft, motorised waterborne craft or sailing vessels or windsurfing."
The following issues arise:
Waterborne Craft
Mr Lynagh submitted that a jet ski was plainly a waterborne craft within the meaning of section 9 of the policy and thus the accident did not fall within the cover provided or more precisely was expressly excluded. He referred to the Shorter Oxford English Dictionary and various regulations and manufacturers' documents obtained from the internet, also Steedman v. Scofield ...
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