Sofi v Prudential Assurance Company Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE LLOYD,LORD JUSTICE GLIDEWELL,LORD JUSTICE WOOLF |
| Judgment Date | 06 March 1990 |
| Neutral Citation | [1990] EWCA Civ J0306-11 |
| Docket Number | 90/0207 |
| Court | Court of Appeal (Civil Division) |
| Date | 06 March 1990 |
[1990] EWCA Civ J0306-11
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(HIS HONOUR JUDGE WHITE (sitting as a
Deputy High Court Judge)
Royal Courts of Justice.
Lord Justice Lloyd
Lord Justice Glidewell
Lord Justice Woolf
90/0207
1987 S. No. 2082
MR. NICHOLAS LEGH-JONES Q.C. and MR. RICHARD BENDALL (instructed by Messrs. Streather, Thomson & Hauser) appeared on behalf of the (Plaintiff) Respondent.
MR. JAMES WADSWORTH Q.C. and MR. RODERICK DOGGETT (instructed by Mr. R.J. Hunter, Solicitor to Prudential Corporation) appeared on behalf of the (Defendants) Appellants.
In this case we have been concerned with the meaning and effect of a clause in a policy of insurance whereby the insured is obliged to take all reasonable steps to safeguard the property insured and to avoid accidents which may lead to damage or injury.
There are, in fact, two policies before us, both issued by the defendants, the Prudential Assurance Company Limited. The first policy is an ordinary householder's policy. It is called Private Combined (Hearth and Home) Policy. The printed form is contained in a booklet which is divided into seven sections. Section 1 covers buildings. Section 2 covers household contents against the usual perils, such as fire and theft. Section 3 covers all risks. It is relatively short and provides as follows:
"The Company will indemnify the insured against loss of or damage to the property described in the Appendix to this Section caused by any peril not excluded by the General Exceptions, the Appendix or an endorsement, provided the loss or damage occurs in Territorial Area B (including in transit within that area) unless varied in the Appendix."
There are certain exceptions to section 3 as follows:
"The Company will not be liable under this Section for loss of or damage to
1 any musical instrument by the breakage of strings,
…
2 flash bulbs or tubes, projector bulbs or glass slides,
3 property more specifically insured."
Territorial Area B is defined as including the whole of Europe.
I can omit any reference to sections 4 to 10. Section 11 covers family liabilities, i.e. it idemnifies the insured against any sum for which he or a member of his family may be legally liable to third parties. Section 12 I can also omit. There are then two general policy exceptions, which are not relevant for present purposes. Finally, there are five general policy conditions relating to such matters as the making of claims. It is not suggested that any of those five conditions are relevant.
When the policy was first issued in 1984 it covered the plaintiff under sections 2 and 11—i.e. the household contents section and the family liabilities section—for the period from 8th February 1984 to 8th February 1985. The sum insured under section 2 was £50,000. There was no war risks cover under section 3.
When the policy was renewed on 8th February 1985 it was extended to cover the plaintiff under the all risks section, section 3. The sum insured for household contents was reduced to £20,000. The sum insured under the all risks section was £31,385. In October 1985 the sum insured under the all risks section was increased to £42,035. The annual premium charged on the all risks section was £1,471. The property insured under the all risks section was set out in a schedule attached to the policy. It listed various items under nineteen heads, mostly jewellery. Each item of those nineteen heads was individually valued, and the total comes to £42,035.
When the policy was renewed in 1985 the defendants sent the plaintiffs a document headed "Important notice to Policy-holders". The document contains three columns of closely packed print. Halfway down the first column it provides under the heading "Policy Cover Revision":
"Details of all the changes and some improvements to the insurance provided by the following sections are shown below."
There follows seven paragraphs dealing with various changes to section 1, ten paragraphs dealing with changes to section 2, and under section 3 the following paragraph:
"The following exception is added:
The Company will not be liable for the first £15 of any amount otherwise payable hereunder."
At the very bottom of the third column appear these words:
" General Policy Conditions
The following conditions are added
1 Cancellation
The Company may cancel this Policy by giving seven days written notice by recorded delivery to the address stated in the Schedule of the Policy. The insured may cancel the Policy at any time. A return of premium will be made but not if there have been any claims in the current period of insurance.
2 Prevention of Loss
The Insured and any person entitled to claim under this Policy must take all reasonable steps to safeguard any property insured and to avoid accidents which may lead to damage or injury. All property insured must be maintained in efficient condition and repair."
It is the second of those two conditions, which I shall refer to for convenience as "General Conditon 2", on which the defendants rely. It was introduced for the first time in 1985. We have not been asked to consider whether, if it bears the meaning for which the defendants contend, they did enough to bring it to the plaintiff's attention, or whether it was in the nature of a trap for the unwary. So I say no more about that.
The second policy before us is a so-called "Travelwise Insurance" policy which the plaintiff took out on 3rd January 1986 in anticipation of a journey which he was about to make to France. It insured the plaintiff and four named beneficiaries for loss of personal baggage up to a sum of £10,000 and for money up to the amount of £2,000. The period of cover was 11th January to 10th February 1986. Clause 6 of the general conditions contained in the Travelwise policy provides:
"Each Beneficiary shall take all reasonable steps to prevent loss, damage, injury or illness, to safeguard his property, to trace and recover property lost and to discover guilty persons."
Those then are the two clauses upon which the defendants rely and with which we have been concerned on this appeal. The wording of the two clauses is not identical, but for present purposes I can discern no difference in legal effect.
On 12th January the plaintiff duly set out for his holiday in France. He had a large Datsun saloon car. In it were himself, his wife, his recently married daughter, Mrs. Kondoz, his son-in-law, Mr. Kondoz, and his son-in-law's mother, Mrs. Ahmet. They each had with them a suitcase.
Before leaving home, the plaintiff had explained to the defendants' agent that he was going to take his jewellery with him to France. He said that he felt safer that way as he had had a previous burglary. His evidence was that he put the jewellery into a soft leather case, about 12 inches by 6 inches, which he then kept in a locked glove compartment in the car.
So it was that the party arrived in Dover on 12th January, where they found that they had time to spare. The subsequent events are so well set out by the judge in his judgment that I cannot do better than repeat them verbatim:
"The party arrived at Dover at about 11.30 and with three quarters of an hour or so in hand before they were due at the terminal the plaintiff's son-in-law suggested they should go to look at the Castle. He drove the car up to the site, through the gate in the outer curtain of the fortifications following the road which leads to the inner bailey.
Very shortly after turning into the Castle he saw a small car park on the right hand side and pulled into it, presuming that it was for the public. The car park can be seen in the photographs exhibited. It is a small tarmaced area, partly enclosed by the rim of the outer wall of the fortifications, and it faces the central mound upon which the inner bailey stands. Both the road and a footpath lead from it up the mound and if climbed on foot the car park is fully overlooked for some time. This can be well seen in Photographs 14 and 5. The car park, in fact, was not for public use but was reserved for the security staff of the Castle. Nevertheless, I accept the Plaintiff's evidence that there was nothing to indicate this. There was no notice and no barrier across the entrance at the time as appears in the photographs which were taken later. It was not unreasonable for the son-in-law to pull into this car park.
I reject, however, the plaintiff's evidence that there was a security guard at or near the car park when they drove in. He said that having seen this guard he felt that there would be other security men nearby and therefore this was a secure place to leave the car. In his statement to the defendants he, however, had said that he did not see anybody there at the time and Mr Kondoz could not, in his evidence, confirm that there was anybody in the car park when they arrived. Further, had there been a guard in the vicinity it is surprising he did not take action to stop them parking in the staff car park. I find, as a fact that the car Park was unattended with no-one in the immediate vicinity.
On leaving the car I accept there was a short discussion between the plaintiff and his son-in-law about what they should take with them. In the event the plaintiff decided to take the travellers cheques and £3,000 in French and English currency with him, but to leave the jewellery in the locked glove compartment. The three women left their handbags on the shelf at the back of the car covered by their...
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