Weldrick v Essex and Suffolk Equitable Insurance Society Ltd [1949-50]

FACTS:-

The Claimant, Eva Weldrick’s claimed at all material times she was employed by Jan Mohamed as a housekeeper and secretary. Due to Mohamed’s very limited knowledge of the English language and his complete inability to write it, he had to employ someone in the capacity of secretary to enable him to carry on his business as a drapery pedlar. The oral contract, was made at Birmingham in or about June or July, 1940, and the agreed remuneration was £3 per week and board and lodging. The Claimant said that her employment commenced in or about July, 1942, at No. 50A, Cromwell Street, Nechells, near Birmingham.

The house contained four rooms and the usual offices, and Claimant attended to two persons until about the middle of 1944, and thereafter to Mohamed only, but since the latter part of 1944 Claimant’s younger daughter (then aged nine years) had resided with her. At about that time Mohamed moved to a cottage at Hardwick Farm, near King’s Lynn, which contained five rooms, where Claimant attended to three persons. At about the beginning of 1945, Mohamed moved to a flat at No. 42A, High Street, King’s Lynn, which contained three rooms, and on or about Nov. 3, 1948, to a bungalow in Pullover Road, Tilney All Saints, near King’s Lynn, which contained four rooms. At the last two addresses, Claimant had attended to Mohamed, and her daughter had continued to reside with her.

By a policy of insurance issued by Defendants, Mohamed was insured against all sums which he might become liable to pay in respect of bodily injury to any person in the event of accident caused by or through or in connection with his motor car. By an endorsement on the policy it was agreed between defendants and Mohamed that defendants should not be liable

“in respect of . . . bodily injury to any person (other than a passenger carried by reason of or in pursuance of a contract of employment) being carried in or upon or entering or getting on to or alighting from any vehicle in respect of which indemnity is granted under this policy at the time of the occurrence of the event out of which any claim arises.”

On or about 27^th June 1946, the Defendants delivered to Mohamed a certificate of insurance in accordance with s.36(5) of the Road Traffic Act, 1930.

On 11 March 1947, when both the policy and the certificate were in force, and while Claimant was travelling as a passenger in Mohamed’s motor car by reason of or in pursuance of her contract of employment with him, the motor car was involved in an accident whereby Claimant sustained bodily injury and suffered consequential loss and damages. In the Claimant’s particulars on this point, the Claimant said that on 12^th March 1947, Mohamed had to travel to London in connection with his business in order to obtain goods from certain wholesalers. It was necessary for Claimant to accompany him to assist him with his language difficulties. The Claimant however had received a subpoena to attend at the Royal Courts of Justice, London, on 11 March and Mohamed accordingly arranged to travel to London on 11 March instead of 12 March.  He travelled in his motor car and brought Claimant with him. The Claimant was not released from her subpoena until 4pm, which was too late in the day for Mohamed to be able to transact his business, and it was while returning from London to King’s Lynn that the accident took place. At the time of the accident Mohamed was driving.

On 2nd February 1948 the Claimant recovered judgment against Mohamed for £3476 12s. 7d. *93 damages and £162 17s. 5d. costs. No part of the judgment had been satisfied, and Claimant now claimed that such sums were payable by the defendants.

Defendants, by their defence, denied that Claimant was employed as a housekeeper by Mohamed, and went on to say that if Claimant was at any material time employed by Mohamed, the contract of employment was illegal and void on the ground that the consideration or part of the consideration therefore was that Claimant should live and cohabit with and serve as and be the mistress of Mohamed. The Defendants alleged that Claimant had lived and cohabited and habitually committed adultery with Mohamed on divers dates and at divers addresses, and that during that period she and her daughter had habitually used and been known by the surname of Mohamed.

The Defendants admitted the facts of the accident and that Claimant thereby sustained bodily injury, loss and damage. They also admitted that Claimant had recovered judgment against Mohamed; but they contended that in any event the Claimant was precluded from recovering as she had failed to give notice of the proceedings as required by Sect. 10 (2) (a) of the Road Traffic Act, 1934 .

HELD:-

Birkett, J., held that an intimation to the insurers that in certain circumstances proceedings might be brought, but not necessarily that they would be brought, was not notice to the insurers of the bringing of the action for the purposes of s.10 of the Road Traffic Act, 1934.   Justice Birkett concluded that this was a technical matter, that the requirements of s.10 had not been fulfilled inasmuch as the insurer did not have notice of the bringing of the action.

It is very difficult to resist the view that the Defendants in those circumstances knew that proceedings would almost inevitably be brought, but Birkett J could no decide it like that.  The solicitor’s letter was insufficient notice for the purposes of section 10(2): “What they (the insurers) did have was an intimation that in certain circumstances proceedings might be brought, but not necessarily that they would be brought.”

The Judgement was given for the defendants with costs.

Related posts:

1. Ceylon Motor Insurance Association v Thambugala 1953