Insurable Loss of a Motor‐Car
| DOI | http://doi.org/10.1111/j.1468-2230.1955.tb00333.x |
| Published date | 01 November 1955 |
| Date | 01 November 1955 |
Nov.
1956
NOTES
OF
CASES
613
Bowen L.J. unless importance is attached to the word “con-
tractual.
”
Having regard to the informal manner in which the principle of
Hughes
v.
Metropolitan, Railway
may be set in operation, it is
submitted with respect that their Lordships were indeed wise to
exclude any element of technicality from the mode in which its
operation may be terminated. Any such technical requirements, as
Lord Tucker pointed out, might tend to penalise
or
discourage the
making of reasonable concessions.
J.
C.
SMITH
INSURABLE
Loss
OF
A
MOTOR-CAR
IT
appears that for some time now the insurance world has sought a
favourable ruling from the courts on the interpretation of the word
“loss
’’
in
a
policy of motor insurance. The patent ambiguity
presented by the word
“
loss
”
gives rise to difficulties which have
been acknowledged judicially; thus, Bankes L.J. said in
Moore
v.
Evans
2:
‘‘
Mere temporary deprivation would not under ordinary
circumstances constitute a loss. On the other hand complete
deprivation amounting to
a
certainty that the goods could never
be recovered is not necessary to constitute a loss.
It
is between
these two extremes that the difficult cases lie, and no assistance
can be derived from putting cases which are clearly on the one side
or
the other of the dividing line.” Similarly, Parker
J
(as he then
was) in
Webster
v.
General Accident, Fire and Life Assurance
Corporation,
Ltd3
commented:
“It
is almost impossible to lay
down any accurate test which will
fit
for all circumstances.” The
terseness of the judgment of Lord Goddard
C.J.
in
Eisenger
v.
General Accident, Fire and Life Assurance Corporation, Lt~l.~
comes
therefore as a surprise to the legal profession. Moreover, the decision
is
a reaction against the trend away from the invocation of the
criminal law test which Parker
J.
in
Webster’s
case rejected,
although not entirely.
In
Webster
and in
Eisenger
both Parker
J.
and Lord Goddard
C.J.,
respectively, in cases stated by arbitrators, approached the
matter initially in similar fashion. In testing whether there had
been a loss both their Lordships proceeded to inquire whether the
property in the car
as
well as the possession had passed; this led
1
The most common form of policz oontains the clause indemnifying the assured
.
for
I’
108s of or damage
.
. .
to the car. See Shawcross on
Motor
Insurance,
a
[1917]
1
K.B.
458 at p. 471.
8
[1953]
1
Q.B.
520 at p.
529.
4
[1955] 2
All
E.R.
897; [1955]
1
W.L.R. 869.
Webster’s
case was cited
to
the
Lord Chief Justice but is
not
referred to
in
the course of a despairingly brief
judgment (at p.
871).
See
also [1955] 2 L1.L.Rep. 95 at p. 96, where
the
argument
on
behalf of the claimant
is
cited. The perfunctory treatment
of
the
argument does less than jostice
to
the claimant’s ease.
2nd ed. (1949), p. 601.
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