Marzouca v Atlantic and British Commercial Insurance Company, Ltd
| Jurisdiction | UK Non-devolved |
| Judge | Lord Hodson |
| Judgment Date | 01 April 1971 |
| Court | Privy Council |
| Date | 01 April 1971 |
| Docket Number | Not Stated |
Privy Council
Lord Hodson; Lord Donovan; and Lord Diplock
Not Stated
J.G. Le Quesne, Q.C., and S.N. McKinnon for the appellant.
Leacroft Robinson, Q.C. (of the Jamaica Bar) and John Griffiths for the respondents.
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(1) Swaby v. Prudential Assurance Co., Ltd. (1964), 6 W.I.R. 246.
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(2) Brown v. Brash d Ambrose, [1948] 2 K.B. 247; [1948] 1 All E.R. 922; [1948] L.J.R. 1544; 64 T.L.R. 266; 92 Sol. Jo. 876, C.A.
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(3) Keevee v. Dean, Nunn v. Pellegrini, [1924] 1 K.B. 685; 98 L.J.K.B. 203; 180 L.T. 593; 40 T.L.R. 211; 68 Sol. Jo. 321; 22 L.G.R. 127, C.A.
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(4) Skinner v. Geary, [1981] 2 K.B. 546; 100 L.J.K.B. 718; 145 L.T. 675; 95 J.P. 194; 47 T.L.R. 597; 29 L.G.R. 599, C.A.
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(5) Brown v. Draper, [1944] K.B. 809; [1944] 1 All E.R. 246; 113 L.J.K.B. 196; 170 L.T. 144; 60 T.L.R. 219, C.A.
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(6) Winicofsky v. Army & Navy General Assce. Assocn., Ltd. [1919], 85 T.L.R. 288; 88 L.J.K.B. 1111.
Insurance - Fire insurance — Hotel — Condition that hotel not to “become unoccupied and so remain for period of more than 80 days” — Night-watchman on premises but without means of access into building — Meaning of “unoccupied” — Whether breach of condition.
This is an appeal from the Court of Appeal of Jamaica (Eccleston and Luckhoo, JJ.A., Moody, J.A., dissenting), allowing the respondents' appeal from an order of the Supreme Court of Jamaica (Chambers, J.), dated February 10, 1987, whereby judgment was entered for the appellant against the respondents for the sum of £40,075 claimed under a policy of insurance.
The appellant is the owner of the Ethelhart Hotel at Montego Bay which together with the contents was destroyed by fire on the night of May 19/20, 1964. At the same time there was damage to the concrete boundary walls and the patio.
Under a policy of insurance issued on December 12, 1958, by the respondents and renewed from time to time, the last renewal being on July 24, 1968, for the period ending July 24, 1964, the hotel was insured against loss or damage by fire in the sum of £40,000 the contents in the sum of £5,000 and the concrete boundary wall and patio (added in the year 1960) in the sum of £2,400.
The respondents rejected the claim on the ground that at the time of the fire the policy had been avoided by non-compliance with the conditions 8(a) and 8(b) contained in the policy.
These conditions read as follows :
“8. Under any of the following circumstances the insurance ceases to attach as regards the property affected unless the Insured, before the occurrence of any loss or damage, obtains the sanction of the Company signified by endorsement on the Policy by or on behalf of the Company
(a) If the trade or manufacture carried on be altered, or if the nature of the occupation of or other circumstances affecting the Building insured or containing the insured property be changed in such a way as to increase the risk of loss or damage by fire.
(b) If the Building insured or containing the insured property become unoccupied and so remain for a period of more than 30 days.”
On proof of breach of either condition the respondents must succeed.
The trial judge found in favour of the appellant on each issue and gave judgment in his favour. In the Appeal Court, by a majority, this decision was reversed on the ground that 8(b) had been breached on the admitted facts. This made it unnecessary to decide whether there had also been a breach of 8(a), but each of the majority judges in the Court of Appeal expressed his opinion that the trial judge's approach to the evidence given in relation to condition 8(a) was also wrong. Eccleston, J.A., considered that on the weight of the evidence the probabilities appeared to come down in favour of the insurers whereas Luckhoo, J.A., would, but for the conclusion he had reached on condition 8(b), have proposed a new trial.
Their Lordships will address themselves first to condition 8(b) upon which the majority of the Court of Appeal arrived at a definite conclusion in favour of the present respondents.
The critical words in this condition are “become unoccupied and so remain for a period of more than 80 days” contained as they are in a fire policy. The facts relevant to occupancy are these:
By a cover note dated July 25, 1958, the respondents agreed with the appellant to insure his hotel for a period of twelve months from July 24, 1958. The building was then unoccupied, but was expected to be let to the Government in the near future for use as a nurses' home.
On October 1, 1958, the building was occupied by nurses, following a lease of the premises granted to the Government by the appellant.
A cover note of December 4, 1958, replaced the cover note of July 25, 1958, in the same terms with an addition relating to a mortgage, which was in turn replaced on December 12, 1958, by a policy of insurance effective from July 24, 1958, to July 24, 1959.
The nurses continued to live in the building until September 80, 1963, when they vacated the premises pursuant to a year's notice given by the appellant to the Government terminating the lease.
It was the intention of the appellant to convert the building into residential fasts, but the work of conversion did not start until November 20, 1968. During the intervening period of 51 days there was no one at all in, the building. It was locked up and the keys were retained by the appellant. The appellant paid a police constable to act as night-watchman, but he never went inside the building; he had no means of doing so.
On November 20, 1988, a contractor began the work of conversion on the instructions of the appellant. This work started on a part of the building known as the Annexe of which the keys were handed over to the contractor. The rest of the building remained locked up and the furniture was stored.
Under the contract, the contractor was required to supply a watchman until the work was completed. This he did. The watchman occupied a hut on the top of a building called the City Centre building which is not far distant from the Ethelhart building and commands a view of it but not all of it. During this period the appellant did not himself employ a constable as night-watchman, but the police continued to keep an eye on the building and to visit it from time to time in the course of their ordinary police duties. They had no access to its interior.
If upon these facts the building became unoccupied and so remained for a period of more than 80 days the appellant was in breach of condition 8(b). Before the work of conversion began there is no doubt but that the building was unoccupied in the sense that there was no one in it for some 51 days. If this is sufficient to constitute a breach of condition 8(b) it will be unnecessary to consider what conclusion as to occupancy should be reached during the period after the work of reconstruction had begun and workmen were regularly engaged upon the premises.
Both Eccleston, J.A., and Luckhoo, J.A., were of opinion that during the 51-day period the building was unoccupied and that for this reason the policy had ceased to attach. As Luckhoo, J.A., said “during that period apart from casual visits of the police to the premises only a night-watchman in the form of a constable was there to keep out intruders. No one resided or stayed in the building. The constable's duties did not involve going into the building.”
The appellant has submitted to their Lordships that too narrow a meaning has been attributed to the word “unoccupied” by the majority judges, and that so long as the period during which there is no one in the building, though it exceeds thirty days, can be regarded as temporary because of the assured's intention to put the building again to residential use and to provide adequate protection to it in the meantime, the building does not become “unoccupied” within the meaning of condition 8(b).
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