CHOW YUK KIT v LOMBARD INSURANCE CO. LTD.

HCA001172/1972

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

ACTION 1172 OF 1972

-----------------

-----------------

Coram: Mr. Commissioner Morley-John

Date of Judgment: 13 February 1973

-----------------

JUDGMENT

-----------------

1. After certain argument this action concluded with a judgment by consent in favour of the Defendants however at the request of Counsel I have set out the reasons which prompted such conclusion.

2. In her statement of claim the Plaintiff alleged that on the 24th of January 1971 she was travelling in a private motor car driven by one LO Sai Chuen who was the registered owner of the said vehicle, when this vehicle was involved in an accident, as a result of which the Plaintiff suffered personal injuries.

3. On the 8th of July 1971 the Plaintiff brought an action in the Supreme Court against the said LO Sai Chuen to recover damages in respect of her injuries. As a result of this action the Plaintiff obtained judgment against the said LO Sai Chuen for damages assessed in the sum of $21,400 together with costs to be taxed.

4. At the time of the accident there was in existence a policy of insurance issued by the Defendants in this present action as authorized insurers within the meaning of section 3(1) of the Motor Vehicles Insurance (Third Party Risks) Ordinance to the said LO Sai Chuen in respect of the said vehicle of which he was the registered owner.

5. Having been unable to recover any part of the sum of $21,400 or costs from LO Sai Chuen the Plaintiff now seeks to recover this sum and costs from the Defendant by reason of the provisions of section 10(1) of the Motor Vehicles Insurance (Third Party Risks) Ordinance. This sub-section provides as follows:-

"If, after a certificate of insurance has been issued under sub-section 3 of Section 6 in favour of the person by whom a policy has been effected, judgment in respect of any such liability as is required to be covered by a policy under paragraph (b) of sub-section 1 of Section 6 (being a liability covered by the terms of the policy) is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel, or may have avoided or cancelled, the policy, the insurer shall, subject to the provisions of this section, pay to the persons entitled to the benefit of the judgment any sum payable thereunder in respect of the liability, including any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any law relating to interest on judgment."

6. The Defendants by way of defence pleaded inter alia that at the time that the accident was alleged to have occurred, the Plaintiff was an employee of the said LO Sai Chuen and was being driven home by the said LO Sai Chuen, but that the said journey was not in pursuance of a contract of employment between the Plaintiff and the said LO Sai Chuen. Alternatively that such journey was for purely personal reasons unconnected with the employment of the Plaintiff.

7. Having proved the judgment and the award of damages and costs obtained by the Plaintiff against LO Sai Chuen in the previous action, Counsel for the Plaintiff in accordance with the provisions of Order 27 Rule 3 of the Rules of the Supreme Court applied for judgment against the Defendants on the facts admitted in the Statement of Defence. He referred to terms of the motor car insurance policy in force at the time of the accident and issued by the Defendants as set forth in paragraph 1 of Section II of the said policy which provided as follows:-

"Subject to the Limits of Liability the Company will indemnify the Insured in the event of accident caused by or arising out of the use of the Motor Car against all sums including claimant's costs and expenses which the insured shall become legally liable to pay in respect of

Counsel for the Plaintiff argued that the Defendants had specifically pleaded that the Plaintiff was an employee of LO Sai Chuen and that she was being driven by LO Sai Chuen, but that the journey was not in pursuance of a contract of employment, and alternatively they had pleaded in effect that the Plaintiff was an ordinary passenger and as such the Plaintiff does not come within the exceptions mentioned in the policy and that the Defendants were therefore liable under the terms of the said policy.

8. As I have already stated, the Plaintiff has brought this action in pursuance of the provisions of Section 10 of the Motor Vehicle Insurance (Third Party Risks) Ordinance, but on close reading, the provisions of this section only apply to judgment obtained against an insured person, in this case Mr. LO Sai Chuen, in respect of any liability as is required, and I stress the word "required", as is required to be covered by a policy under the Section 6(1)(b) of the said Ordinance.

9. Section 6(1)(b) of the Ordinance provides as follows:-

"In order to comply with the requirements of this Ordinance, a policy of insurance must be a policy which

10. Therefore upon the facts pleaded in the Statement of Defence as relied upon by Counsel for the Plaintiff in his submission, it is clear that Section 6(1)(b) of the Ordinance specifically provides that a policy shall not be required to cover a person such as the Plaintiff, as it was specifically pleaded that the Plaintiff was an employee of LO Sai Chuen, that the journey was not in pursuance of a contract of employment, and in the alternative, the Plaintiff was an ordinary passenger. I therefore ruled that that application under the provisions of Order 27 Rule 3 must fail.

11. Having given such a ruling Counsel for the Plaintiff conceded that the provisions contained in Section 10 and Section 6 of the Ordinance were unanswerable and he consented to judgment being entered in favour of the Defendants and that the Plaintiff's claim be dismissed with taxed costs in favour of the Defendants. I therefore enter judgment accordingly.

Representation:

Sarguinette (David Tsang & Co.) for Plaintiff.

Asome (Deacons) for Defendant.