Mitchell v Commercial Union Assurance Company Ltd
| Jurisdiction | St Vincent and the Grenadines |
| Judge | Singh J. |
| Judgment Date | 02 February 1989 |
| Neutral Citation | VC 1989 HC 1 |
| Docket Number | No. 402 of 1987 |
| Court | High Court (Saint Vincent) |
| Date | 02 February 1989 |
High Court
Singh, J.
No. 402 of 1987
Mr. Donald Trotman, Mr. Hansraj Matadial with him for the plaintiff.
Mr. Andrew Cummings for the defendant.
Damages - Breach of insurance contract — Defendant refusing plaintiff's claim under insurance policy for damage and destruction caused by fire — Finding that the claim was valid.
By a policy of insurance No. 59 F740138 dated August 22nd, 1974 made between the plaintiff and the defendant, in consideration of premiums paid and to be paid upon the terms mentioned therein, the defendant agreed to insure the plaintiff against loss or damage by fire in the sum of $200,000: The Sunny Grenadines Hotel is a two storey building situate at Ashton, Union Island. On April 1st, 1987 the said building was destroyed by fire. The plaintiff notified the defendant of its loss on April 1st, 1987 and, on April 3rd 1987, the plaintiff delivered to the defendant a claim in writing in respect thereof but the defendant has not paid the plaintiff the said sum of $200,000: All these facts are admitted by the defence.
The plaintiff therefore claims:–
- Special damages $200,000: 2. General damages. 3. Further and other relief. 4. Costs.
The defence, having admitted the aforesaid facts, by way of an amendment to the defence, denies that the policy, was in force as at the date of the fire and states that it was a condition of the policy that 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 upon the policy by or on behalf of the company.
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(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.
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(b) If the building insured or containing the insured property become unoccupied and so remain for a period of more than 30 days.
The defence then alleges that after the making of the said policy and before the occurrence of the alleged lash or damage the plaintiff, without the sanction of the defendant signified by endorsement upon the said policy by or on behalf of the defendant, was in breach of (a) and (b) above. It is for this reason that the defence pleads that the policy was not in force at the time of the fire. This amendment to the defence was granted at address stage in this matter in the exercise of the court's judicial discretion, Counsel for the plaintiff Mr. Donald Trotman not pursuing his objection taken thereto and the court being satisfied that the entire case was conducted on this basis. Indeed this was the very live and only issue in the matter.
The particulars of these alleged breaches which were not specifically pleaded in the written defence as requited by 018 R8 of the Rules of the Supreme Court Revision 1870, but which were disclosed during the cross-examination of the plaintiff by defence counsel Mr. Andrew Cummings on the first day of the hearing of this matter without objection from the plaintiff's side, were that at the time of the fire the building was not being used as a hotel but as a service centre and that for this change of the nature of occupation the plaintiff did not obtain the sanction of the defendant signified by endorsement upon the said policy of insurance before the fire and, secondly, that the insured property became unoccupied and remained so for a period of more than 30 days before it was destroyed by the fire.
After the plaintiff and his witness had testified, an adjournment was granted the defence for some two weeks to enable them to have their adjuster Nigel Minnett from Barbados testify on their behalf. At the resumed hearing, at the request of the defence and, with the leave of the court, the plaintiff twos recalled for further cross-examination by Mr. Cummings, Mr, Cummings having advised the court that he then had further instructions as to the line taken by the defence he having had an opportunity to speak to the insurance adjuster Nigel Minnett. This cross-examination, to my mind, was a mere elaboration of the initial cross examination of the plaintiff on the issues wised by the defence, it introduced no new line, it merely ought to introduce more details of the alleged breaches. It was only at this stage that Mr. Matadial for the plaintiff sought to take the objection that this evidence should not be allowed on the ground that the facts were not pleaded in the defence as required by 018R8(1) (b) (supra). He submitted that they were being taken by surprise. This rule states as follows:
- (1) A party must in any pleading subsequent to a statement of claim plead specifically any matter, for example, performance, release, any relevant statute of limitation, or any fact showing illegality. (a)………. (b) Which, if not specifically pleaded might take the opposite party by surprise.
I agree with Mr. Matadial's submission that these facts should have been specifically pleaded but, my view is that the abjection to the evidence was taken too late, as at the time it was taken the mischief was cured as the element of surprise was no longer there, the particulars having been disclosed in the cross-examination of the plaintiff at the first day of the hearing of the matter some two weeks before. Indeed, the examination-in-chief of the plaintiff also discloses that the plaintiff was being questioned along the line of these particulars. In any event, the court having overruled the objection, counsel for the plaintiff did not see it fit to seek leave to lead further evidence on this aspect, which leave the court would have granted as of right.
I now turn to the substantive issues raised in this matter. I As I understand the law on the burden of proof in relation to the issues raised in the pleadings, the burden that rested on the plaintiff was to prove that at the time of fire the Sunny Grenadines Hotel was insured with the defendant company in the sum of $200,000 against the risk of fire. As I said earlier when I was dealing with the pleadings herein, all these facts, I except that the policy of insurance was in existence at the time of the fire, were admitted by the defence.
I therefore find as a fact that by a policy of insurance No. 59F 740138 dated August 22nd 1974 made between the plaintiff and the defendant company, in consideration of premiums paid and to be paid upon the terms mentioned therein the defendant agreed to insure the plaintiff against loss or damage by fire in the sum of $200,000 in relation to the Sunny Grenadines Motel, a two storey building situate at Ashton, Union Island. I find as a fact that on April 1st, 1987 as a result of a fire of unknown origin the said building was destroyed. The plaintiff orally notified the defendant of his loss on April 1st, 1987 and on April 3rd, 1987 the plaintiff delivered to the defendant a claim in writing in respect thereof. The defendant has not paid the claim.
The plaintiff produced in evidence, without abjection from the defence, a photocopy of the policy of insurance referred to above which, prima facie, shows that the said policy was in existence at the time of the fire. I therefore hold as a matter of law that the plaintiff has discharged the burden placed on them.
The defence then, to my mind, in order to dislodge the prima facie evidence of the existence of the policy at the time of the fire, had the burden of proving a breach by the plaintiff clause 8A and/or 8B of the policy of insurance the terms of which for ease of reference I will again set out hereunder.
Under any of the following circumstances the...
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