Green v Russell. McCarthy (Third Party)

JurisdictionEngland & Wales
CourtCourt of Appeal
JudgeLORD JUSTICE HODSON,LORD JUSTICE PEARCE
Judgment Date14 May 1959
Judgment citation (vLex)[1959] EWCA Civ J0514-3
Docket NumberX. 1956. G. No. 97
Date14 May 1959

[1959] EWCA Civ J0514-3

In The Supreme Court of Judicature

Court of Appeal

Before:

Lord Justice Hodson,

Lord Justice Rosier and

Lord Justice Pearce.

X. 1956. G. No. 97
Between:
Florence Green (Administratrix of the estate of Alfred Edward Green deceased)
Plaintiff
and
Sarah Ann Russell (Administratrix of the estate of Arthur Henry Russell deceased)
Defendant
and
Oswald McCarthy and the Mayor, Aldermen and Corporation of the City of London
Third Prties

Mr M.D. Van OSS (instructed by Messrs Greenwoods) appeared on behalf of the Appellant (Defendant).

Mr R. MARVEN EVERETT, Q.C., and Mr JOHN RITCHIE (instructed by Messrs Abbott, Baldwin & Co.) appeared on behalf of the Respondent (Plaintiff).

LORD JUSTICE HODSON
1

: I have had the advantage of reading the Judgment which Lord Justice Romer is about to deliver. I agree entirely with that Judgment and the reasons which he will give. I only wish to emphasise that those reasons are applicable to this particular case and I do not wish to be taken as Going further than Lord Justice Romer in answerinft the question left open by this Court in Bows in Bowskill v. Dawson, reported in 1955 volume 1 Queen's Bench, pare 13.

2

LORD JUSTICE ROMER: This is an appeal from an Order of Mr Justice Ashworth, under which the plaintiff was awarded the sum of £1,300 against the defendant in an action brought undor the Fatal Accidents Acts. The plaintiff sued as the administratrix of her husband, Alfred Edward Green, who was, at the time of his death, employed as an assistant architect by Arthur Henry Russell, and the defendant is Mr Russell's legal personal representative.

3

The facts are not in dispute. Mr Russell was an architect and had office premises at 11, Duke Street, Bermondsey. He and Mr Green and other employees of Mr Russell worked at these premises. On the 6th June 1955, there was a disastrous fire at the premises which caused the doaths of both Mr Green and Mr Russell. As a result of this the plaintiff started the present proceeding. The defendant admitted liability but took third party proceedings, which were settled out of court, and this court is not concerned with them. It was agreed between the plaintiff and the defendant that the sum to be awarded as damages to the plaintiff should be £1,300, but subject to an issue which was argued before the learned Judge, and which is the subject of the present appeal.

4

The point arises in this way. In the year 1951 Mr Russell took out a Group Accident Insurance policy with the Yorkshire Insurance Company Ltd, in respect of certain members of his staff, including hlr Green. The accident which caused the doath of Mr Green was covered by the policy in the sum of£1,000, and following upon his death a claim for this amount arose and was met by the company. The sum was paid to Mrs Russell as representing the estate of her husband, who was "the Insured" under the policy. The question is whether this sum of £1,000 (which has been or is in the course of being paid over by Mrs Russoll to Mrs Green) falls to be deducted from the agreed damages of £1,300 by virtue of the provisions of section 1 of the Fatal Accidents (Damages) Act 1908. The learned Judge held that the sum was not deductible, and it is against that decision that Mrs Russell has appealed.

5

The learned Judge arrived at certain findings of fact which are relevant to the issue now before us in certain of its aspects, and he expressed them in the following terms: "it is to ray mind plain that the terms of their" (namely the employees named in the policy) "employment did not include any provision in regard to the policy. There was nothing in those terms which resembled the provisions contained in the booklet issued by the employers in Bowskill v. Dawson (1955, volume 1 Queen's Bench, page 13). On the other hand, I think that the existence of the policy was known to Mr Russell's employees in such a manner as to create in their minds a reasonable expectation of benefit for themselves or their dependants in the event of their being injured or killed. I should perhaps add, in view of a point taken in the course of the argument in reply to Mr Van Oss, that I can find nothing which would justify the inference that the possibility of benefit under the policy affected the employees' attitude in regard to their employment; there was nothing to show that they refrained from giving notice or from asking for an increase in salary in consideration of the benefits which come to them from the policy, nor was there anything to show that Mr Russell undertook an obligation to maintain or renew the policy".

6

These findings of the learned Judge were not challenged before us by either side, and it follows from them, in my judgment, that the £1,000 now in question would clearly have to be brought into account by Mrs Green, as a benefit arising out of her husband's death, against the loss which she has sustained by reason of his death unless she is able to rely on section 1 of the Fatal Accidents (Damages) Act, 1908, ( Baker v. Dalglefeh Steam Shipping Company, 1922, volume 1 Kind's Bench, page 361;Jenner v. Allen West & Company Ltd. 1959, volume 2 All English Law Reports, page 115).

7

Section 1 of the 1908 Act is as follows: "In assessing damages in any action, whether commenced before or after the passing of this Act, under the Fatal Accidents Act, 1846, as amended by any subsequent enactment, there shall not be taken into account any sum paid or payable on the death of the deceased under any contract of assurance or insurance, whether made before or after the passing of this Act".

8

As the result of this appeal depends, in my judgment, primarily upon the terms of the policy which Mr Russell effected with the Yorkshire Insurance Company Ltd., I will refer now to its provisions in some little detail. It is described as a Personal Accident Group Policy, and has a recital: "Whereas the Insured is desirous of securing payment of benefits as hereinafter set forth to any Insiired Person in the event of his sustaining accidental bodily injury as hereinafter provided and by a Proposal and Declaration which shall be the basis of this Contract and be deemed to be incorporated herein has applied to the company and has paid or agreed to pay the Premium as consideration for such insurance during the Period of insurance or during any period for which the Company may accept payment for the renewal of this Policy". Then the Policy witnessed: "That subject to the Terras of Exceptions and Conditions contained herein and of any endorset mont hereof If at any time during the currency of this Policy any Insured Person shall sustain bodily injury caused by violent accidental external and visible means and such injury shall as the direct sole cause thereof and independently of all other causes within three calendar months from the occurrence thereof: Section A:- Result In death the Company shall pay the Sum Insured stated Section against Section A in the Schedule. Section B:- Result in the loss by physical severance of one or both hands or one or both feet or the complete and irrecoverable loss of sight of one or both eyes the Company sfeall pay the Sum Insured stated against Section B. in the said Schedule. Section C:- Totally disable the Insured Person from engaging in or attending to his usual occupation but shall not entitle him to the Sura Insured under Section B the Conpany shall pay for such total disablement the Sum Insured per week stated Section against Section C in the said Schedule. Section D:- Partially disable the Insured Person from engaging in his usual occupation but shall not entitle him to the Sum Insured under Section B the Company shall pay for such partial disablement the Sum Insured per week stated against Section D in the said Schedule", Then there follow a proviso and exceptions to which I need not refer.

9

Then certain conditions are stated. It says: "This Policy and the Schedule shall be read together as one contract and any word or expression to which a specific meaning lias been attached in any part of this Policy or of the Schedule shall bear such specific meaning wherever it may appear". Then there follow eight conditions of which I need mention only Condition 5 and Condition 8. Condition 5: "The Company shall be entitled to treat the Insured as the absolute owner of this Policy and shall not be bound to recognise any equitable or other claim to or interest in the Policy and the receipt of the Insured or the Insured's legal representative alone shall be an effectual discharge". Condition 8: "The due observance and fulfilment of the terms conditions and endorsements of the Policy in so far as they relate to anything to be done or complied with by the Insured or any Insured Person and the truth of the statements and answers in the said Proposal shall be conditions precedent to any liability of the Company to make any payment under this Policy".

10

Then under the schedule to the policy the insured is described as "Arthur H. Russell". Certain dates than appear, including dates of the period of insuranoe, and the renewal date. Then follows a list of the insured persons, and they include Mr Russell himself. Opposite the name of each insured person tinder sections A, B, C, D and E respectively, there are sums mentioned, some capital and some weekly sums, which are payable on the happening of the insured risks, Then it is stated: "The weekly benefits under Sections C and D are payable collectively for 100 weeks. The first premium is stated to be £24.1Gs.9d, and the annual premium is the same amount.

11

Then there are some endorsements to the policy, and I need refer only to two, both of them dated 7th September 1951, The first one states: "It is hereby declared and agreed that in addition to the weekly compensation payable under Sections C and D the company will reimburse the medical...

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