Re Coleman's Depositories Ltd, and Life and Health Assurance Association
| Jurisdiction | England & Wales |
| Date | 1907 |
| Court | Court of Appeal |
Insurance, Accident - Policy - Condition in Policy - Immediate Notice of Accident - Omission to give Notice - Insurer's Liability.
A policy of insurance covering the liability of an employer to compensate his workmen for injuries by accident in the course of their employment was made subject to a condition that the employer should give immediate notice of any accident causing injury to a workman, and to a further condition that the observance and performance by the employer of the times and terms set out in the policy, so far as they contained anything to be done by the employer, were the essence of the contract.
On December 28, 1904, the employer signed a proposal form for the insurance and received a covering note, to which no conditions were attached. On January 3, 1905, the insurers sealed, and on January 9 delivered to the employer, the policy in question, which expressed that it was to be in force from January 1, 1905, to January 1 in the following year. On January 2, 1905, a workman in the employ of the assured was injured by an accident, which was believed to be slight, and of which notice was not given at the time to the insurers. Dangerous symptoms supervened, and the injured workman died on March 15; notice of the accident was given by the employer to the insurers on March 14, the day before the workman's death. The insurers repudiated all liability under the policy, on the ground (among others) that immediate notice of the accident was not given by the employer in accordance with the condition in the policy, and that the condition was a condition precedent to the right of the employer to recover. A claim for compensation by the widow was properly settled by the employer for a reasonable sum, and the claim of the latter against the insurers was referred to an arbitrator under the arbitration clause in the policy. The arbitrator held that the condition as to giving immediate notice of injury was a condition precedent, but stated his award in the form of a special case for the opinion of the Court, which reversed the arbitrator's decision. Upon appeal by the insurers:—
Held by Vaughan Williams L.J. and Buckley L.J. (Fletcher Moulton L.J. dissenting), that, in the absence of evidence that the employer either knew of, or had the opportunity of knowing of, the existence of the condition at the date of the accident, the condition was one with which it was impossible to comply: that, as regards a risk which resulted in a claim before the insured had knowledge of the condition, the true inference was that the insurers never imposed the condition on the employer, and that the latter was therefore entitled to recover on the policy.
Quoere whether upon the construction of the policy as a whole, apart from the particular circumstances, the condition was a condition precedent.
APPEAL from a decision of Bray J., reversing an award of an arbitrator stated in the form of a special case.
The arbitration was held pursuant to an arbitration clause in a policy of insurance whereby the Life and Health Association undertook to indemnify Coleman's Depositories, Limited, against liability for injuries to their workmen under the
On December 28, 1904, a representative of a firm of insurance brokers in Liverpool procured the signature of the employer to a form of proposal supplied by the association for insurance against the above risks; the proposal was then taken to the Liverpool agent of the association, who signed a form of receipt or covering note, the material part of which, so far as regards the present case, was, “Cover to hold good from this date”; the covering note contained no conditions. On January 3, 1905, a policy of assurance was signed and sealed by or on behalf of the association, and on January 9 or 10 it was handed by them to the insurance brokers and delivered by the latter to the employer. The policy expressed that it was to be in force from January 1, 1905, to January 1, 1906, and by it the association agreed to pay to or on behalf of the employer such sums as the employer should become liable to pay in respect of injury occasioned during the continuance of the policy to any workman whilst in his employment, under or by virtue of the Workmen's Compensation Acts, the Employers' Liability Act, or at common law. Clause 2 of the policy, so far as it is material to the present case, was as follows: “The employer shall give immediate notice to the association of any accident causing injury to a workman, and the employer shall also forward to the association every written, or information as to any verbal, notice of claim received within three days after the receipt of such notice, and shall give all information and assistance required by the association ……” By clause 7, “The observance and performance by the employer of the times and terms above set out, so far as they contain anything to be done by the employer, are the essence of the contract.”
On January 2, 1905, a workman named John Corrin, in the employ of the employer, received an injury by accident arising out of and in the course of his employment. The injury was not at first supposed to be serious, but he was eventually taken to a hospital, where he died on March 15. The only notice of the accident given by the employer to the association was a verbal notice on March 14, the day before the workman's death. Written notice of claim by the widow was received by the employer on March 27, but was not forwarded to the association; on March 29, however, the association were informed by a letter from the employer that the claim had been made. The association at once repudiated liability, and declined to take any part in, or give any instructions as to, the settlement of the claim. Proceedings under the Workmen's Compensation Act were taken by the widow and defendants against the employer, and were settled by the employer for 122l. and costs, which latter were ascertained at 12l. 17s.; the settlement was found by the arbitrator to be a reasonable and proper settlement. The addition of the employer's costs brought up the claim under the policy to a total of 162l. 12s. 4d.
The association having declined to pay that or any amount to the employer, the difference between them was, under the arbitration clause in the policy, referred to arbitration. At the hearing before the arbitrator it was admitted that Corrin's death was due to injuries by accident arising out of and in the course of his employment, and no question was raised as to the amount of the claim. But it was contended by the association that they were not liable to pay the claim on five grounds, of which the second was, “That the claimants had not given immediate notice to the association of the accident as required by clause 2 of the policy, and that the giving of such notice was by reason of clause 7 of the policy a condition precedent to the claimants' right to recover”; while the third ground was based on the fact that “the claimants did not forward to the association the written notice of claim received by them within three days after the receipt thereof as required by clause 2, and that the forwarding of such notice of claim was by reason of clause 7 of the said policy a condition precedent to the claimants' right to recover.”
The arbitrator found that grounds 2 and 3 afforded a good defence to the claim, but that the other three grounds did not.F1 He stated his award in the form of a special case, in which the question for the Court was “whether the claimants are disentitled by any of the said grounds of defence to succeed in their claim.”
The special case was argued before Bray J., who held that neither the provision for giving immediate notice of an accident nor that for the forwarding by the employer to the association of a written claim was a condition precedent to the employer's right to recover on the policy, and gave judgment for the employer. The association appealed. The appeal was confined to the question whether the giving immediate notice of an accident was a condition precedent, the other point as to forwarding the written claim not being argued by counsel.
Tobin, K.C. (G. D. Keogh and G. Wighton Powers with him), for the appellants. The decision of the arbitrator was...
To continue reading
Request your trial
-
Diab v Regent Insurance Company Ltd [PC]
...following cases were referred to in the judgment: Coleman's Depositories Ltd and Life & Health Assurance Association's Arbitration, ReELR[1907] 2 KB 798. Jureidini v National British and Irish Millers Insurance Co LtdELR[1915] AC 499.Super Chem Products Ltd v American Life and General Insur......
-
Aspen Insurance UK Ltd & 2 Ors v Pectel Ltd
...condition 4. It was common ground that “immediate” meant “with all reasonable speed considering the circumstances of the case”; see Re Coleman's Depositories [1907] 2 KB 798 at 807 per Fletcher Moulton LJ. It was also common ground that “any occurrence which may give rise to indemnity under......
-
R v Inspector of Taxes, ex parte Clarke
...in Section 64. There is one case, ( In re An Arbitration between Coleman's Depositories Limited and The Life and Health Assurance Association 1907 2 King's Bench Division page 798) in which Lord Justice Fletcher Koulton laid down the principles to be applied in considering the word "immedia......
- American Life Insurance Company v Sumintra
-
Insurance
...to give “immediate” notiication means “with all reasonable speed considering the circumstances of the case”: Re Coleman’s Depositories [1907] 2 KB 798 at 807, per Fletcher Moulton LJ; Laker Vent Engineering Ltd v Templeton Insurance Co Ltd [2008] EWHC B6 (QB) at [70], per HHJ Hegarty QC (ai......
-
Duties of insurance brokers
...Limited v Lowe,Times, 8th January,1997.(7) Home Ins Co v Cooper 889 F 2d 746.(8) Re Coleman’s Depositories and Life &Health Association 1907 2 KB 798 at 807.(9) A S Rendell v Archos Limited 1937 58Lloyds Rep 287 at 292.(10) Per Pollock CB in Mason v Harvey 1853 8Ex ch. 819 at 820.(11) Herbe......
-
YORKSHIRE INSURANCE CO. LTD. V. HAWAY
...and the plaintiffs were entitled to judgment in the terms of their claim. CASES REFERRED TO IN JUDGMENT. 1. Coleman's Depositories Ltd. (1907) 2 K.B. 798. 2. Wuraola v. The Northern Assurance Co. Ltd. (1967) S.C.349/66 of 6/9/69. 3. Wyndham, Rather Ltd. v. Eagle, Star & British Dominions In......