Liability Insurance
Cases
West Wake Price & Co v Ching
[1956] 3 All ER 821
DEVLIN J
I have reached the conclusion that there is in fact a simpler and more effective test which is the correct one. It depends simply on the true construction of the policy. Businessmen often want to write into a document words which they think will amplify its meaning, but which lawyers reject as superfluous; nevertheless, the writing in of superfluities sometimes helps to clarify questions of construction. If a layman wanted a phrase such as ‘claims in respect of negligence’ to be altered to read ‘claims in respect of negligence only’ or ‘claims in respect of negligence but not in respect of fraud’, a lawyer would tell him that these additions were superfluous, since negligence meant negligence and nothing else and did not include fraud. That is plainly enough the effect of the decision in Goddard and Smith v Frew.’ If words such as these were there, however, they would serve to show that a claim in respect of negligence and in respect of fraud is excluded from the description in the policy. To come within the policy the character
of the claim must be unmixed. It must be negligence alone. Applying this test, which I think is the right one, the claim in this case is outside the policy.
Woolfall and Rimmer Ltd v Moyle
[1941] 3 All ER 304
LORD GREENE MR
It is conceded by Counsel for the [insurers}-and quite rightly conceded in my view-that, in entrusting to this foreman the task of.providing suitable and safe material for scaffolding and selecting suitable material for a particular job, the employers were taking a reasonable precaution within the meaning of condition 5. No doubt vis-a-vis a workman injured through the negligence of the foreman, that would not be a sufficient answer to a claim. How ever, this seems to me to be irrelevant, because the question we have to answer is: ‘What is meant by a “reasonable precaution” in this particular document and as between these two parties?’ Counsel for the [insurers], having conceded what I have mentioned, then wished to construe the condition as importing the element of what, for shortness, I have called vicarious responsibility. He says that, notwithstanding that the selection of a competent foreman for the purposes stated is the taking of reasonable precautions, the employers are in breach of the condition if that foreman is in fact negligent in carrying out the task entrusted to him, or, in other words, that the condition has the effect, so to speak, of imposing upon the assured the burden of a guarantee of the diligence of the foreman in the performance of the task which they have reasonably entrusted to him. That seems to me to be completely inadmissible. If the delegation was reasonable, and, if, in selecting that particular foreman to perform the task, the [insured] took reasonable precautions, their obligation under this condition was, in my opinion, at an end.
It seems to me that the language is perfectly satisfied by the taking of such reasonable precautions as, on any given set of facts, would satisfy a test of reasonableness as between the insured and the underwriters. As I have said, it is eminently reasonable for employers to entrust the tasks to which I have referred to a skilled and trusted foreman on whose competence they have every reason to rely.
I