Cartwright v MacCormack 1963

FACTS:-

At 5.45pm on 17 December 1959, the Claimant in the action, then an infant, was riding his motor bicycle along a road when he was run into by the Defendant driving a motor car across his path. The Claimant on 4 October 1960 issued his writ in this action claiming damages for personal injuries. The Claimant was successful and had judgement for £770 11s 8d.

The Defendant at the same time took third party proceedings against the Respondent insurance company, alleging the company’s liability to indemnify him under an instrument called a temporary cover note issued by the insurance company on 2 December 1959.

The temporary cover note issued by the insurance company showed the “effective time and date of commencement” as “time 11.45am” and “date 2.12.59”. It further stated “This cover note is only valid for fifteen days from the commencement date of risk … Under no circumstances is the time and date of commencement of risk to be prior the actual time of issue of this cover note… In any event the duration of this cover note shall not be more than Fifteen Days from the date of commencement of insurance herein “

The insurance company resisted this claim on three grounds, two of which were rejected by the judge. The third ground, on which the insurance company succeeded, was that the policy had expired before the accident

The Defendant appeals this decision in the Court of Appeal before Willmer, Harman and Davies LJJ

HELD:-

Harman LJ determined that the real issue in the case was the true meaning of the written term, namely when did the fifteen days start to run? The insurance company argued that it started at 11.45am on 2 December and therefore expired at the same time on 17 December several hours before the accident occurred. For the Defendant it was argued that the time did not begin to run till midnight on 2 December and was, therefore, still current at the time of the accident.

Harman LJ despite agreeing with the former at first impression, further scrutiny led him to prefer the latter. What changed his mind was that the time and date are used as two separate terms, first in the phrase “effective time and date of commencement”, secondly in the two boxes, one for “time” and one for “date”, thirdly in the expression “commencement date of risk” in the fourth box, and in the phrase below again “time and date of commencement of risk”. The duration of the insurance company’s liability is expressed as fifteen days from the commencement date; it is not fifteen days from the commencement of risk. The policy therefore expired fifteen days from 2 December and these words on the ordinary rules of construction exclude the first date and begin at midnight on the second.

The insurance company supported their argument, that fifteen days meant fifteen consecutive periods of twenty – four hours, with Cornfoot v Royal Exchange Corpn [1904] 1 KB 40. This was a case of marine insurance where a vessel was held insured “for thirty days in port after arrival”, it was held;

“that the expression “thirty days” in the policy meant thirty consecutive periods of twenty four hours, the first of which began to run at 11.30 am on 2 August, and therefore, that the insurance had come to an end before he loss occurred”

Despite approving the authority of the case, Harman LJ claimed that no case deciding a point of construction binds the court on different words, and the word “date” did not appear.

Harman LJ concluded that the leading case is Lester v Garland (1808) 15 Ves 248. It was held that the six months within which the condition precedent could be performed were exclusive of the day of the testator’s death, and he having died on 12 January a security given on 12 July at nine in the evening was good. Sir William Grant stated at ((1808), 15 Ves at 257):

“…upon technical reasoning I rather think, it would be more easy to maintain, that the day of an act done, or an event happening, ought in all cases to be excluded, than that it should in all cases be included. Our law rejects fractions of a day more generally than the civil law does. The effect is to render the day a sort of individual point; so that any act, done in the compass of it, is no more referable to any one, than to any other portion of it; but the act and the day are co-extensive, and therefore the act cannot properly be said to be passed, until the say is passed”

From the authorities cited Harman LJ concluded that generally speaking, when a day is mentioned from which the time is to start running, fractions of a day ought to be disregarded and time should run from midnight. In the present case the words “date of commencement” or “commencement date” used are synonymous with the day of commencement, and not the time of commencement, and therefore the fifteen days is to be calculated from midnight on the commencing day.

He allowed the appeal holding that the Defendant was still insured at the time of the accident.

Willmer LJ agreed with Harman LJ for exactly the same reasons. He did, however, address further authorities in determining this issue.

He stated that there is abundant authority for the proposition that in calculating a period of time within which some act must be done, or after which it may not be done, fractions of a day are to be ignored. First he referred to Lord Mansfield in Pugh v Duke of Leeds ((1777), 2 Cowp 714 at 720);

“Date does not mean the hour or the minute, but the day of delivery; and in law there is no fraction of a day”

Similar to Harman LJ, Wilmer took the view that the authorities do not make it possible to accede the contention put forward by counsel for the insurance company that “date” comprehends “time”. He was driven to the conclusion that the period of insurance in the present case must be regarded as continuing until the end of the fifteenth day after 2 December 1959, i.e. midnight on 17 December.

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