Tam Hing Wah and Another v. Mo Choi and Others

HCA007270/1985

1985, No. A7270

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

Coram: Deputy Judge Barnett in Court

Date of Hearing: 6 - 7/11/86

Date of Delivery of judgment : 26/11/86

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JUDGMENT

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1. At about 10:40 p.m. on 4th August 1984, the plaintiffs left the second defendant's restaurant at Paterson Street, Causeway Bay. Almost immediately, they were knocked down and severely injured by a motor car driven by the first defendant who was employed by the second defendant in connection with a parking service provided for the second defendant's customers. At the time, the first defendant was manoeuvering a customer's car in order to allow another customer's car to be removed from the narrow alley in which it was parked at the side of the restaurants

2. The offending car (the car) was owned by YU's Million Electronics Company Ltd. (the company). It had been driven to the restaurant by Mr. YU Ying Wai, the managing director of the company, who left it at the entrance of the restaurant to be parked.

3. The plaintiffs issued a writ against the defendants seeking damages for personal injuries on the basis that "the car was driven by the first defendant a's servant and/or agent of the second defendant and/or alternatively in the course of the first defendant's employment with the second defendant and/or alternatively within the terms of the first defendant's agency with the second defendant". This alternative pleading was admitted by the defendants, although they denied liability. The defendants joined the third party (Pacific) and served a statement of claim. In that statement of claim, after reciting the plaintiffs' statement of claim and their own defence, the defendants claimed that, in the event of being held liable to the plaintiffs, they were entitled to be indemnified by Pacific by virtue of a policy of motor insurance (the policy) issued by Pacific to the company, wherein Pacific agreed inter alia to indemnify any authorised driver of the car against all sums which such authorised driver should become legally liable to pay in respect of bodily injury to any person where such injury arose out of an accident caused by or in connection with the care

4. By their amended defence, Pacific denied that the defendants were entitled to be indemnified, on two grounds. First, it was denied that the first defendant was an authorised driver within the meaning of the policy on the ground that Mr, YU and no authority to authorise or permit the defendants to use or drive the car; alternatively, Mr. YU was not acting in his capacity as a director of the company or in the course of the company's business, so that the defendants could not have permission from the company to use the car. This ground was not pursued by Mr. Rogers who appeared on behalf of Pacific.

5. Secondly, even if the first defendant was an authorised driver under the policy, the driving of the car by him was outside the limitations as to use, in that at all material times he was driving the car for the purpose of the second defendant's business and or otherwise than for social domestic or pleasure purposes or for the company's business or profession. Pacific therefore was not at risk in respect of that use of the care

6. The defendants served a reply which did no more than join issue. When the action came on for trial before me, judgment was entered by consent of all parties for the plaintiffs against the defendants in the sum of $700,000. At that stage, because of the late amendment to Pacific's defence, I gave leave to the defendants to amend their reply. The amendment pleaded that the car was handed over to the first defendant on the terms which appeared on a parking service docket, which was handed to Mr. YU by the first defendant at the same time. The terms on the docket were  

"Parking condition

Customer's cars may at their own risks and responsibilities be parked by our drivers as customers' authorised agent at any place. Neither our Restaurant nor our drivers will be responsible for any damage or loss however arising under any circumstances.'

7. That was the state of the pleadings when trial of the issue between the defendants and Pacific began. By that last amendment, the defendants appeared to be saying that the first defendant was Mr. YU's agent authorised directly by him, the second defendant playing no part in the transactions. This was indeed the main thrust of Mr. Mumford's argument. Mr. Mumford was discomfited when, after calling no evidence on behalf of Pacific, Mr. Rogers in his final speech argued that the amendment in the reply was in-consistent with the defendants' statement of claim, that it should more properly have appeared in the statement of claim and that in any event, the point was res judicata.

8. After argument, I gave leave to Pacific to file a rejoinder. In the rejoinder, Pacific averred that the defendants are estopped from relying upon the terms of the parking service docket, in so far as they purported to deny that at all material times the car was driven by the first defendant as servant and/ or agent of the second defendant and/or in the course of the first defendant's employment with the second defendant and/or within the terms of the first defendant's agency with the second defendant. This was averred on the basis that these matters had been admitted by the defendants in the amended defence to the plaintiffs' claim and, further, that admission had been incorporated in the statement of claim against Pacific. Secondly, by consenting to judgment being entered against them, the defendants had expressly or by implication admitted these matters.

9. I can quickly deal with the issues raised by the rejoinder. As Mr. Mumford pointed out, the defendants admitted in their defence a paragraph in the plaintiffs' statement of claim which pleaded a number of alternatives. It is not clear which of those alternatives was admitted. In the same way, the judgment which was entered by consent gives no clue as to which alternative is admitted by the defendants. There has been no trial of the issues between the plaintiffs and defendants. In any event, those issues were not between the same parties in the same right, the issues between the defendants and Pacific being a separate lis. It would, therefore, be wholly wrong, said Mr. Mumford, if the defendants, having agreed to settle with the plaintiffs, should not now be able to address the real issues between them and Pacific.

10. I am satisfied that this is not a true case of res judicata and that the defendants should not be estopped from raising the agency point. Inconsistent as it is with the defendants' statement of claim, the point amounts to an alternative pleading which should and could properly have appeared in that statement of claim. However, the issue was clear to Pacific. Mr. Rogers was able to and did argue the point fully.

11. In order to establish the defendants' claim, Mr. YU and the first defendant both gave evidence. Mr. YU said that the car was bought for him for business dealings and, inter alia, for social purposes. On the evening in question, he was throwing a dinner party for his relations, staff of his company and business associates to celebrate his birthday. He drove to the second defendant's restaurant in the car at about 5:00 p.m. taking with him members of his family and some wine for use at the dinner. On arrival at the restaurant, he handed the car key to the parking service office so that the car could be parked and was issued a parking docket. Although he had been to the restaurant on previous occasions and was aware of the parking service, and was aware that conditions were endorsed on the back of the parking docket, he had never read those conditions. After handing over his key, he expected that "they" would park the car for him at the open space in front of the restaurant or in the alley at the side. He was aware that because of the restricted space in the alley, cars at the front might have to be moved to allow cars at the back to drive out.

12. The first defendant said that he was one of four men employed by the second defendant to park cars. He or the other drivers would wait by the parking desk until a customer came requiring his car to be parked. It was entirely a matter of chance who parked which car. On the night in question, he happened to be at the desk when Mr. YU came and Mr. YU handed the car key to him for which a parking docket was issued. He parked Mr. YU's car and later was manoeuvering it, in order to let another car out of the alley, when the accident occurred. He was aware that something was written on the parking docket to the effect that "we" were authorised to park the car, and if any damage or accident occurred, the restaurant would not be held responsible.

13. A photograph of the parking desk was exhibited. This appeared to have a notice upon it in terms similar to the conditions on the parking docket. There was no satisfactory evidence, however, that the notice was present on the night in question. Certainly, Mr. YU was unable to recall it. There was no evidence of any separate charge being made for the parking service.

14. The evidence was not challenged.

15. The issue appeared simple. Mr. Mumford contended that the first defendant was Mr. YU's agent, properly authorised to park the car and carry out any necessary manoeuvres in furtherance of Mr. YU's social activities. Accordingly, the use of the car fell within the limitations permitted by the policy and Pacific is liable under the usual liability to third parties clause in the policy.

16. Mr. Rogers submitted that the second defendant provided a parking service as part of its business, in the same way as it might provide music or cloakroom facilities; that the first defendant was employed in order to operate the parking service; and that at the time of the accident the first defendant was using the car on the second defendant's business, Mr. YU's social use of the car having ceased when he handed over the key. Therefore, Pacific could rely upon one of the exceptions to liability contained in the policy. Alternatively, the car was being used both for Mr. YU's social purpose and on the second defendant's business, and was therefore uninsured at the time because of the dual use doctrine : Passmore v. Vulcan Boilder & General Insurance Co. Ltd. (1936) 54 L1. L. Rep. 92.

17. The relevant provisions of the policy are :

"Section II - liability to third parties

2. The Company will subject to the Limits of Liability and the Jurisdiction Clause indemnify any Authorised Driver or at the request of the Insured any person (other than the person driving) in or getting into or out of the Motor Vehicle against all sums, including claimant's costs and expenses which such Authorised Driver or person or person shall become legally liable to pay in respect of

(a)    death of or bodily injury to any person

(b)    damage to property

where such death or injury or damage arises out of an accident caused by or in connection with the Motor Vehicle or the Loading or Unloading of the Motor Vehicle".

That of course is the clause upon which the defendants rely.

The Schedule to the policy provides as follows

"Authorised driver : any of the following :

(b)    any person who is driving on the Insured's order or with his permission."

and then there is a provision relating to driving licences which is immaterial for the purposes of this case. It continues :

"Limitations as to Use :

Use only for social domestic and pleasure purposes and for the Insured's business or profession."

followed by another provision which again is immaterial.

18. There is a number of what are termed "General Exceptions". The most important are

"The Company shall not be liable in respect of

1.    any accident loss damage or liability caused sustained or incurred

...........................

(b)    whilst on the Insured's order or with his permission or to his knowledge any motor vehicle in respect of which indemnity is provided by this Policy is

(i)     being used otherwise than in accordance with the Limitations as to Use

(ii)	being driven by any person other than an Authorised Driver or is for the purpose of being driven by him in the charge of such person.

3.    any liability which attaches by virtue of an agreement but which would not have attached in the absence of such agreement.

19. On the evidence, Mr. Mumford argued that Mr. YU must be taken to have been aware of the conditions on the parking docket and to have accepted them. It was only on those conditions that the second defendant was prepared to make drivers available to customers. The second defendant would not make a driver available if the conditions were not accepted. That is a manner in which people are perfectly entitled to contract.

20. Further, Mr. Mumford argued that, whilst the provision of a parking service might be beneficial to the second defendant by making the restaurant more attractive to customers, the second defendant was not in the business of parking cars. The second defendant was simply making available drivers whom customers could hire at their own risk as their agent if they so wished. If Mr. YU had asked a casual bystander to park the car, it could not be argued that the car did not continue to be put to social use. There was no essential difference in this case. The subsequent manoeuvres by the first defendant were no less part of the social use as being incidental to the parking operation.

21. Mr. Rogers pointed out that the first defendant had not read the precise conditions on the parking docket, while Mr, YU, although aware that there were conditions on the docket, appreciated only that he could not Claim against the second defendant for scratches. He also said that there was no evidence that the parking conditions were displayed on the parking desk at the time, and no evidence that any charge was made for the parking service. In the circumstances, the exemption clause on the docket, which must be construed strictly, cannot avail the defendants. The position quite clearly was that the first defendant was discharging his duties to his employer, the second defendant, part and parcel of whose business was parking customers' cars in specific areas. The first defendant's employment was no different in character from that of a cook or cloakroom attendant.

22. Even if the initial parking still constituted social use by Mr. YU, Mr. Rogers contended it is the use at the time of the accident that must be examined : Samuelson v. National Insurance and Guarantee Corporation (C.A.)(1985) 2 Lloyd's Rep. 541. He said there can be no doubt that the manoeuvering of the car was to enable the second defendant to make best use of the limited parking space available to it and so provide a better restaurant service. Therefore, use was for the second defendant's business and was excluded from cover by the pclicy.

23. Mr. Mumford, while addressing me on the dual use doctrine, referred to D.H.R. Moody (Chemists) Ltd. v. Iron Trades Mutual Insurance Co. Ltd., (1971) 1 Lloyd's Rep. 386. In that case a local authority was entertaining a delegation from a French town in connection with a twinning scheme. It was necessary to take the members of the delegation back to the airport. At the request of the authority, the plaintiff lent its car to the authority for this purpose. While an officer of the authority was returning from the airport with the car, he was involved in an accident. The limitation of use of the car was for "social, domestic and pleasure purposes and use for the business of the insured. Wrangham J. decided that he should consider from a common sense point of view what the car was being used for at the moment of the accident. He found that it was a social activity, having no difficulty in holding that a local authority can be involved in social activity so that the car when used in the course of those activities was being used for social purposes. At p. 389 in his judgment, he said:

"..... the fact that the driver of the car is fulfilling his duty to his employer by driving it does not, of itself, prevent the use of the car being for a social purpose."

Mr. Mumford urged that the car continued to be used for Mr. YU's social purpose, notwithstanding that the first defendant was fulfilling his duty to the second defendant.

24. I am unable to accept Mr. Mumford's arguments. This is not a case of a casual bystander being asked to park a car. It is a case of a restaurant employing 4 men whose sole function was to park customers' cars. It is a reasonable and, indeed, the only inference that this was done in order to make the restaurant more attractive. No charge was apparently made to customers for parking their cars. The parking docket, to which so much weight is attached, was regarded by Mr. YU as no more than a receipt for his car. That Mr. YU recognised the possibility the car might have to be moved is irrelevant.

25. In Seddon v. Binions and Others (1978) 1 Lloyd's Rep. 381, which was cited during argument concerning the dual use doctrine, Roskill and Megaw L. JJ. both referred to the need to identify the essential character or primary purpose of the journey in the course of which the accident occurred. It is the word "journey" which is relevant. One of the questions to be answered is whether the manoeuvres carried out by the first defendant were part of Mr. YU's journey.  

26. Samuelson involved the construction of, inter alia, a clause in an insurance policy which excluded liability while the vehicle was "being driven by or for the purpose of being driven is in the charge of any person other than an authorised driver ...." The vehicle was in the charge of a motor repairer who was not an authorised driver but who drove it to an agent to obtain specialist spare parts. While the vehicle was parked outside of the agent's premises, it was stolen. The Court of Appeal decided the vehicle, while so parked, was there for a particular purpose independent of being driven, namely for the.purpose of repair which was an authorised purpose.

27. Whilst that decision was based upon the word "purpose" occurring in a policy, I think it may properly be applied in the present case.

28. It is right to look, as Mr. Rogers urged, at what was happening when the accident occurred. In my view, there was a journey which was separate and distinct from Mr. YU's journey for social purposes. It is significant that it took place some 5 hours after Mr. YU left the car. That journey was for a purpose independent of Mr. YU's purpose, namely to allow the release of another customer's car for the benefit of the second defendant's business. I am satisfied and so find that the car was being driven by the first defendant in the course of his employment by the second defendant on the second defendant's business and, accordingly, the use did not fall within those uses covered by the policy.

29. Mr. Mumford sought to show that Pacific might still not avoid liability. He said that as the General Exceptions in the policy cut down the cover available to the insured, they must be construed against the insurer. Accordingly, for clause 1(b) to apply it must be shown that the insured consciously arranged for the car to be used, otherwise than, in accordance with the Limitations as to Use. Permission, he said, may mean that the car is used, inadvertently, otherwise than in accordance with the Limitations as to Use. The words "order", "permission" and "knowledge'' must be construed eiusdem generis.

30. Mr. Rogers argued that this is simply a reference back to the authorised driver in the schedule where the words "order" and "permission" are also used. Once it is established that a driver has been authorised he will come within this General Exception if the use is not that contemplated by the schedule. I accept Mr. Rogers' argument on this point. There is no doubt that the first defendant was properly authorised.

31. In the circumstances, the defendants' claim must be dismissed.

32. It is not necessary, therefore, for me to consider the dual use doctrine. But, in case I am wrong and the car was at the same time being used for Mr. YU's social purpose and for the second defendant's business, I should review the arguments.

33. In Passmore, which was a special case stated by an arbitrator upon a dispute as to the proper construction of a motor insurance policy, Du Parcq J. set out the relevant portions of the policy in his judgment at p. 93.

"Then there are general exceptions

The insurers shall not be liable in respect of: -

1.    Any accident injury loss damage and/or liability caused sustained or incurred while any motor vehicle in respect of or in connection with which insurance is granted under this policy is (a) Being used otherwise (my underlining) than in accordance with the Description of use" contained in this policy ...... The 'Description of use'' to be looked at is under

Class 3 :-

Use for social domestic and pleasure purposes and use for the business of the insured as stated in the schedule hereto ....."

The judgment continued

"the facts are a little unusual in this case, and I want to make quite clear what I am deciding. I have come to the conclusion, after careful consideration of the case stated that the learned arbitrator visa rights. It is very important to observe that the arbitrator has found in terms, and clearly with intention, that the car was being used for business purposes. The first thing that occurs to one as one looks at this policy is, I think, that a case might arise where the person insured under the policy would extend a courtesy to a friend, or acquaintance, or it might be to a stranger, who was, in fact, carrying on some business and was assisted in carrying on that business by the facilities which were given to him by the insured. In such a case, if the facts found were that the insured, as a matter of kindness, courtesy or charity, gave a lift - to use a colloquial phrase - to someone who happened to be on business of his own, I have no doubt that the proper view to take would be that the car was, for the time being, Being used for a social purpose, and it would not the less be used for a social purpose because the person benefiting by the courtesy was on business. But that is not what happened here. The arbitrator has excluded any considerations of that kind. Miss Passmore did not say to Mrs. Cooks, "I shall be pleased to give you a 'lift as a friend." The car was being used first for the purposes of Miss Passmore's business, and secondly, and in addition, for the purposes of Mrs. Cooke's business. If the policy only said that Miss Passmore was to benefit by it so long as the car eras being used for the purposes of her business, I think her position would be unassailable, because it was being used for the purposes of her business; but that is not what the policy says, and though it is true that when words are ambiguous they must be construed contra proferentem against that party to the contract who is responsible for the drafting of it, that principle cannot be prayed in aid unless the words are of real ambiguity. If, looking at the policy, the meaning appears to be clear, there is no room for the application of that doctrine. The words of the policy are that the insurers shall not be liable in respect of any accident caused while the insured motor vehicle is being used otherwise than in accordance with the "description of use". Was it being used otherwise than in accordance with the description - otherwise than for social, domestic and pleasure purposes and use for the business of the insured It was not being used for social, domestic or pleasure purposes. Was it being used otherwise than for the business of the insured? I do not think one can answer that question otherwise than in the affirmative. It was. It was being used for the business of Mrs Cooke's."

34. If the principle established by that case remains good then Mr. Rogers has a very strong argument. However, Mr. Mumford attacked it, or its applicability to this case, on 3 grounds. First, he suggested that no proper weight has been given to the meaning of the word "otherwise". He said that a meaning should be given to this word that will be readily understood by the insured, rather than a meaning which will be apparent only to a lawyers. The ordinary insured would think that, provided he is using the car within the limitation of risk, he will be covered even though some other use outside of the limitations is taking place at the same time. In other words, the insurer should escape liability only if the car is being used wholly otherwise than for the use stated in the policy. The argument vas canvassed in Passmore and rejected by Du Parcq J. That case has subsequently been followed in a number of other cases : Browning v. Phoenix Assurance Co. Ltd. (1961) 2 L1. L. Rep. 360, McGonna v. M.I.B. and Marsh (1969) 2 Lloyd's Rep. 34. I am not persuaded that the learned judge was wrong.

35. Secondly, Mr. Mumford submitted that the word "only", where it is used in the Limitations as to Use, must have some sensible meaning. He said that if the Limitations as to Use mean that the car can be used for those purposes and nothing else, the word "only" is otiose having regard to the construction of the use clause in Passmore where "only" did not occur. He suggested that the true meaning is that, provided the insured is using the car within the Limitations as to Use, it does not matter if at the same time some other use is being made of it and the insured remains covered by the policy. I have little difficult in rejecting that submission. In Roberts v. Anglo-Saxon Insurance Association Ltd. (1927) 137 L.T. 243, the Court of Appeal had to construe a clause in an insurance policy which was "warranted used only for the following purposes : commercial travelling". In deciding that that clause constituted a description of risk rather than a true warranty Bankes, L.J. said at p. 246,

"In the first place, I do not think we can get away from the words "warranted only". I do not attach undue importance to "warranted." but when I find "warranted" used in conjunction with "only" it seems to me impossible to get away from the conclusion that that is there definitely stated by the parties as a condition that the user of this vehicle shall be only, for the purpose indicated."

36. It seems to me that those words are equally applicable here.

37. Thirdly, Mr. Mumford said that the proper test to be applied is to ascertain what is the predominant use to which the car is being put. This was hinted at in Moody where Wrangham J. said, at p. 388 :

"I prefer to consider from a common-sense point of view what the car was actually being used for at the moment of the accident."

and at p. 389 :

"what has to be looked at is the reality of the situation.

38. Passmore was discussed by the Court of Appeal in Seddon. In that case, the judge at first instance decided that the question to be answered was whether the father's use of his son's car was for the purpose of the son's business or for social domestic and pleasure purposes. He found the answer to be that it was for both purposes, and because of the double use, one of which was not covered by the policy, the proceedings against the insurers failed. In his judgment at p. 385, Roskill L.J. said :

"For my part, I would put the matter a little differently, without in any way criticising the learned Judge's approach. It seems to me that the solution to the problem can best be reached in this case by asking the question : what was the essential character of the journey in the course of which the particular accident occurred? A journey may have one essential or predominant character, or, as the Judge thought, it may have two perhaps equally balanced, perhaps slightly disparate, elements in its make up. If one looks at all the facts, it seems to me that the essential character of this journey was, as Mr. Desch submitted, that the father was using the sari's car for a business purpose. I would accept Mr. Desch's argument that the motive of the particular person is in no way conclusive. But, it obviously is a factor to be taken into account. What one has to look at in this case is the purpose of the son when he asked his father to take his, the son's car back, with (an employee). It seems to me that, if one asks oneself that question, which is the way in which Mr. Desch asks us to approach the problem, the essential character of this journey was the user of the son's car by the father at that time and place, to take an employee either home or to a dentist for that user must be user for a business purpose .......

But if one adopts the learned Judge's approach, and the right view is that there was here a dual purpose, then once it is accepted (as I think it must be on the most favourable view of this case to the appellants) that there was the purpose of getting (an employee) home in the son's car as well as the purpose of getting the father home to lunch, there, being one insured purpose and one excluded purpose, this claim must fail, for the reasons that the Learned judge gave."

39. After citing the passage from Passmore concerning the extending of a courtesy, the judge went on

"That passage has been approved in a number of subsequent cases. Nothing in this judgment is intended to cast any doubt upon the applicability of that passage to a case to which it is appropriate. It may well be that there will be cases, as there have been in the past, where the essential character (to use the phrase used earlier in this judgment) of a particular journey was of a particular kind - and that that essential character will not be altered in the crucial respects merely because, incidental to that journey, something happens in the way of giving a lift to a friend as an act of courtesy or, to borrow Mr. Justice du Parcq's expression, charity. But we are not here concerned with that kind of case : we are concerned with a journey the essential character of which, in my view, was of a business nature, although in the learned Judge's view it was a journey which had dual purposes, a business purpose and a social, domestic or pleasure purpose."

40. As can be seen this is the foundation of Mr. Mumford's argument in favour of the predominant use principle. However, Megaw L.J., after emphasising how important it is to understand the analysis of Passmore and after quoting the courtesy passage in his judgment, at p. 387 said

"In such a case, if one sought to make a subtle analysis of purposes, it might well be said that there was an additional purpose over and above the plain social purpose that the owner driving the car had for his own use : there was another purpose because he gave a lift to somebody, with the result, and quite possibly with the intention, of facilitating that person in carrying on that person's business. I would have no hesitation in agreeing with the proposition put forward by Mr. Justice du Parcq, obiter thought it may have been. I would agree that there is no doubt that the proper view to take would be that that car was for the time being being used for a social purpose

That would deal with such examples as were considered in the course of argument. I take one which was put by Lord Justice Browne in the course of arguments. Suppose that the owner of a car was going to a seaside resort of a week-end holiday. Suppose that a friend of his approached him and said "Are you going to Brighton tomorrow? If so, could you very kindly give me a lift; I have a business appointment there". The owner of the car says "Yes", and gives his friend a lift. If it were suggested that the true interpretation of the policy in the present case would be to exclude the owner of the car from an indemnity under the policy in those circumstances, I would reject such a suggestion outright as being patently absurd. It could not be suggested, in any ordinary or sensible meaning of the words, that the car was being used for a purpose of use for social, domestic and pleasure purposes merely because the owner had given the friend a lift in those circumstances.

That indicates, I think, the limitation on the meaning that is to be placed on the decision in Passmore v. Vulcan Boiler Company. One is not to scrutinise the object of the journey - the motives - what the driver, or the passenger, have in mind to do at the end of the journey or in the course of the journey. There may be cases, and Passmore v. Vulcan Boiler Co. was one, in which it can truly be said that there is more than one purpose. But, in general, I should have thought that there is something that can clearly be called, as I would put it, a primary purpose, by which I intend the same meaning, I think, as Lord Justice Roskill intended in using the phrase "essential character of the journey". If there be such a primary purpose, or essential character, then the Courts should not be meticulous to seek to find some possible secondary purpose, or some inessential character, the result of which could be suggested to be that the use of the car fell outside the proper use for the purposes of which cover was given by the insurance policy. If, however, there are cases in which there are, in the proper sense of the word, two "purposes", as was the case in Passmore v. Vulcan Boiler Co., on the findings of the arbitrator, then I have no reason to disagree in any way with the conclusion in that case as to the results that the terms which the policy contained in that particular case.

In the present case, it would seem to me that the essential character, or the primary purpose, of the relevant journey was one which could not properly or fairly be described as use for social, domestic and pleasure purposes. If, however, to adopt the approach that we adopted in the Court below, it were right to seek there to analyse two separate purposes of the use of the car at the time of the accident, I would agree with the learned Judge that at any rate one of those purposes was one that could not be described as being for social, domestic or pleasure purposes : and on either view the appeal must fail."

41. At first blush, I rather thought that the learned Lord Justice was hedging his bets. I am satisfied, however, that the primary or predominant approach and the dual use doctrine run happily together. If, upon a realistic look at the situation, an obvious or primary purpose emerges, the vehicle will be covered or not as the case may be. If, however, without too much straining at the facts, 2 purposes or uses emerge, one of which is not within the permitted use of the vehicle, the vehicle will not in any event be covered.

42. Assuming I am wrong in finding that the car was being used wholly for the second defendant's business purposes, and Mr. YU's social purpose still attached to the car, I think there can be no doubt that, without any unduly close or detailed scrutiny, there would still remain a significant element of the second defendant's business use. Accordingly, this would not be a primary use but rather a dual use case. On the authority of Passmore the defendants would still fail.

Representation:

Miss J. Pinto instructed by M/S. M.K. Lam.& Co. for both 1st and 2nd Plaintiff.

Mr. E.C. Mumford, QC & Mr. Chu Tak instructed by M/S. A.B. Chan & Co. for D1 - D.

Mr. A. Rogers, QC.& Miss S. Lau instructed by M/S. Stevenson Wong & Co. for 3rd party.