JUDGMENTBY: AMBROSE J, ROSE CJ, BUTTROSE AND WEE CHONG JIN JJ

AMBROSE J This is an action on a motor insurance policy for indemnity in respect of the loss of a motor car which was destroyed as the result of an accident.

About 1.30 a.m. on the 7th April, 1961, while the assured, Hoo Kam Peen, was driving the insured car along Mountbatten Road towards the west, it collided with a tree on the north side of the road and went into a drain near the junction of Broadrick Road and Mountbatten Road. It was completely smashed, and the assured died about three hours later as a result of the injuries sustained by her. It is not disputed that the assured, who was a dance hostess, aged 24 years, consumed a minimum amount of three pints of beer or five fluid ounces of spirit shortly before the accident. And it is not disputed that the assured committed a statutory offence by driving the car whilst under the influence of drink to such an extent as to be incapable of having proper control of the car.

The claim is made under section I of a motor insurance policy made between the assured and the defendants on the 14th March, 1961. By that section of the policy the defendants agreed to indemnify the assured against loss of or damage to the insured car by accidental collision or overturning. It is to be noted that the policy contains a proviso to section IV which deals with accidents to the assured herself. The proviso is to the effect that no compensation shall be payable in respect of death or injury resulting from an accident happening whilst the assured is under the influence of intoxicating liquor or drugs. It is conceded by the defendants that this proviso has no application to a claim under section I.

The first submission of counsel for the defendants is that under condition 3 of the policy the assured was required to take all reasonable steps to safeguard the car from loss or damage; that she committed a breach of this condition by driving the car on the night in question whilst under the influence of alcohol; and, therefore, that the defendants are not liable to pay the indemnity claimed. In my opinion, if it was the intention of the defendants that no compensation should be payable in respect of loss of or damage to the car resulting from an accident happening whilst the assured was under the influence of intoxicating liquor or drugs, they would have inserted a proviso to that effect in section I. It seems clear to me that their failure to do so shows that they had no such intention at the time of the making of the policy. The intention expressed in section I of the policy is to insure against loss of or damage to the car by accidental collision or overturning, that is, any collision or overturning not intentionally caused. If the intention of the defendants was to limit their liability under section I of the policy in the way in which their counsel would have it limited, I take the view that they have used language in condition 3 which fails to make that intention clear. I am, therefore, unable to accept their counsels submission.

The second submission of counsel for the defendants is that it is contrary to public policy to enforce the insurance policy in respect of consequences of the assureds criminal act suffered by the assured as opposed to consequences suffered by third parties. Counsel for the defendants cites Haseldine v Hosken [1933] 1 KB 822. There it was held by the Court of Appeal in England that a contract indemnifying a solicitor against the consequences of any neglect, omission or error in his professional capacity could not be enforced in respect of damages recovered against him for champerty. This was an application of the general rule of public policy that a person cannot recover indemnity under an insurance policy in respect of deliberate conduct on his part which is against the criminal law. In my view, this general rule cannot be applied to the present case because the assureds criminal act was not committed deli

Click Here to Read the rest of this document