Mallalieu v Excess Insurance Company Ltd (No. 2)

• Jurisdiction: Saint Kitts and Nevis
• Court: High Court (Saint Kitts and Nevis)
• Judge: Lewis, C.J.,Lewis, J.A.,Bernard, J. A.
• Judgment Date: 14 December 1971
• Neutral Citation: KN 1971 HC 7
• Docket Number: No. 2 of 1971
• Date: 14 December 1971

High Court

Lewis, C.J.,

Lewis, J.A.

St. Bernard, J.A.

No. 2 of 1971

Mallalieu

and

Excess Insurance Co. Ltd. (No. 2)

Appearances:

F. Kelsick and D. Byron for the plaintiff/appellant

F. Henville and Mitchell for defendant/respondent

Insurance - Motor Insurance — Terms.

Facts: This was an appeal against a decision dismissing the claim of the appellant for $3,600 being the loss or damage to a motor vehicle, which was insured against loss, and damage with the respondent insurance company. The damage to the vehicle was caused by a flood whereas the policy was silent on damage from flood.

Appeal dismissed.

Lewis, C.J.

1 This is an appeal against the decision of Glasgow J. dismissing the claim of the appellant for $3,650 being loss or damage to a motor vehicle, a pick-up van, which was insured against loss and damage with the respondent company,

2 On the night of the 2nd of May, this Austin Pick-up P. 881 was being driven by the appellant's driver, his employee, along the Cayon Street from West to East. It had been raining during the night, and about 11.30 he came to the point where Cayon Street crosses College Street, which is known as the College Street ghaut. He said that some distance West of College Street a car passed him, and he had actually seen that car come out of the ghaut. He entered the ghaut, and his evidence about its condition was that it was running but not heavy. However, the impression that he got seems to have been erroneous, because it was heavy enough to conceal a solid object. His car struck that object and stopped. “The engine cut out”, he said. The opinion of the appellant about what that object was, (and he was giving expert evidence as a trained motor mechanic), was that it must have been a boulder, which I take to mean a large stone: so this suggests that the water must have been fairly high.

3 The driver tried to start the engine, it did not start, and his opinion as to why it did not start, was that water had probably got into the engine. He went on trying for about 15 to 20 minutes, but without success. Gradually the van started moving towards the sea; that is, it was going down College Street in the water. He tried to steer it out of the water, but without any effect whatsoever, until it got to the sea. He then got out of the van and left it there. He was asked in cross-examination why he had not got out before, and his evidence was:

“When I was afraid to get out of the car there was about 19” of water in the College Street ghaut. My van had a clearance of about 12”.

4 So the water was high enough that he exceeded the clearance of his van. And he says:

“I was afraid to get out. A fair amount of water was going dawn the ghaut.”

5 He went next morning and saw the van in the sea, buried in the sand; and he saw that in the streets there was still water and sand. On the road from where Central Street meets College Street, going eastward, water and sand where Liverpool Row meets College Street going right down to the Circus, and the same thing from where the Bay Road meets College Street, going eastward to the Treasury. He says: “I cannot remember seeing so much water on these roads before”, and he is 22 years old. This, of course, was the condition that he saw in the morning. There was evidence that that morning also Khouri's Store, the floor of which is 4' above the level of the ghaut had been flooded and the water was being bailed out and there was a lot of mud and sand in it. That was the principal evidence about the condition of the ghaut.

6 The van was dug out of the sand and examined on the 4th of May. The appellant gave evidence as to the damage. He said, the left hand wheel in front was torn away, the suspension was broken, the right hand fender was bashed in, badly dented, the wind shield was broken, the roof badly dented, the doors could not close, the engine was covered with sand, and the engine compartment was filled with sand. The vehicle could not be repaired. His opinion was that the suspension was damaged from impact with something such as a boulder while the pick-up was moving, but that the substantial damage to the car was done by its being carried down by the force of water. In other words, the van was a complete wreck; $200 salvage value.

7 On this evidence the learned judge made three main findings. He held that the stone or other hard object which damaged the suspension of the pick-up was brought down by the force of the water running in the said ghaut to the position in which it was when the said damage to the suspension occurred. He further held that the failure of the...