COURT OF APPEAL
DATE: 29 JUNE 1971
SIRIBOE J.S.C., SOWAH AND ARCHER JJA
CASE REFERRED TO
Charnock v. Liverpool Corporation [1968] 1 W.L.R. 1498; [1968] 3 All E.R. 473; [1968] 2 Lloyd’s Rep. 113; 112 S.J. 781, C.A.
NATURE OF PROCEEDINGS
APPEAL from a judgment of the Tamale Circuit Court wherein the appellant’s claim for damages for breach of contract under an insurance policy was dismissed. The facts are fully set out in the judgment of Archer J.A.
COUNSEL
O. Appiah for the appellant.
James Quashie-Idun for the respondent.
JUDGMENT OF ARCHER J.A.
Archer J.A. delivered the judgment of the court. The facts in this appeal are briefly as follows: The appellant who was the owner of a Volkswagen motor car registered as NG 619 entered into a contract of insurance with the respondents, Royal Exchange Assurance, whereby a policy No. PM 28974/GH dated 22 February 1961 was issued to cover the appellant’s vehicle for a period of twelve months commencing from 26 October 1960 and ending on 25 October 1961. The value of the car as stated in the policy was £G560.
On 31 October 1960, that is, five days after the effective date of the policy, the appellant’s car was involved in an accident and the car was damaged. On the same day, the appellant gave notice to R. T. Briscoe (Ghana) Ltd., Tamale, as agents for the respondents, and later on 2 November 1960, R. T. Briscoe (Ghana) Ltd. towed the motor vehicle to their workshop at Tamale. Perhaps, it must be pointed out at this stage that apart from being agents for the respondents in purely insurance matters and business, R. T. Briscoe (Ghana) Ltd. also independently carried on their own business as repairers. This dual role of R. T. Briscoe (Ghana) Ltd. as insurers and repairers must be emphasized for a proper appreciation of the facts.
[p.342] of [1971] 2 GLR 340
On 4 April 1961 when the motor vehicle had not been returned to him the appellant issued a specially endorsed writ of summons against the respondents claiming “damages for the respondents’ breach of contract and/or negligence in and around the performance of the respondents’ obligation under and in virtue of a contract of insurance.” No specified amount was endorsed on the writ although a form of specially endorsed writ was issued. However, the writ was accompanied by a statement of claim paragraphs (1) to (6) of which were admitted by the respondents but paragraphs (7) and (8) of which were denied.
Paragraphs (7) and (8) read:
“(7) By the joint effect of section 1 of the said contract of insurance and condition four of the conditions in the said contract of insurance contained the defendants are under an obligation to repair, reinstate or replace the said motor car No. NG 619 or pay in cash the value of the same and it is an implied term of the said contract of insurance that the said obligation to repair, reinstate or replace the said motor car or its value to pay and on the part of the defendants to be performed will be performed within a reasonable time.
(8) The defendants have up to now failed or have unreasonably delayed to repair, reinstate, replace or pay the value of the said motor car as they are bound to do in breach of their obligation in that behalf and in the said contract of insurance contained.”
In the particulars of damage, the appellant claimed that he was deprived of the use of his car from 2 November 1960 when the vehicle was towed to the workshop at Tamale up to the date of the writ, that is 4 April 1961, a total of 131 days, excluding Sundays. However , the appellant gave an allowance of eight weeks as time within which the repairs could have been completed and therefore deducted 48 days from the total of 131 days thus claiming 83 days as the period of delay and for each day of delay he claimed £G3, that is a total of £G249. He also claimed the same rate for the period subsequent to the issue of the writ until final judgment or until the car was delivered.
On 28 April 1961, that is 24 days after the writ had been issued, the motor vehicle in a repaired condition was redelivered to the appellant. When the trial commenced at the Circuit Court, Tamale, the appellant gave evidence and tendered on his own behalf exhibits A, B, C and D. Exhibit A is the contract of insurance and the policy. Exhibits B, C and D are the originals of correspondence between the parties. Unfortunately, these originals cannot be traced and have not still been traced although they must be regarded as having been placed in the custody of the court after they were tendered. As such they have not been typed and included in the record of proceedings.
Learned counsel for the appellant informed the court that he was not relying on these untraceable exhibits although the evidence on record indicates what some (if not all) of these exhibits were about. Learned counsel therefore strenuously submitted that since the contract of insurance
[p.343] of [1971] 2 GLR 340
gave the respondents the option of repairing the vehicle, once they decided to repair, they must be expected to repair in reasonable time. He urged that as the contract was silent on the time to repair, then there must be implied from the contract of insurance a term that the repairs would be carried out within a reasonable period.
We agree that this implied term may be necessary in certain cases. However, the absence of any stipulated period within which to repair is obviously a sensible omission. How can the respondents make a general offer to repair within a specified period in the contract of insurance? Repairs vary according to the nature of the damage, the actual manual labour to be employed, the complexity of the repairs and a host of factors to be taken into consideration. It is therefore simply impossible for an insurance company to commit itself in advance that all repairs, no matter the magnitude of the damage or the enormity of manual working hours involved, will be carried out within a specified time.
The respondents did not give evidence but their learned counsel cross-examined the appellant during which a letter dated 6 January 1961 was tendered through him as exhibit 1. The appellant admitted he wrote this letter to the respondents demanding the total sum of £G560 being the insured value stated in exhibit A. The appellant also admitted that he received a letter dated 13 January 1961 from the respondents, marked exhibit C from which he himself supposed that the respondents were to repair the vehicle. But before the respondents wrote exhibit C, the appellant had received a letter dated 10 January 1961 from R. T. Briscoe (Ghana) Ltd., who had estimated that it would take about four weeks to repair the vehicle. Now exhibit B was written not by R. T. Briscoe (Ghana) Ltd., of Tamale, who towed the car but by R. T. Briscoe (Ghana) Ltd., of Kumasi who prepared the report on the damaged vehicle and submitted their report on 10 January 1961. This means that it had taken R.T. Briscoe (Ghana) Ltd., the repairers from 2 November 1960 to 10 January 1961 to finalise their report on the vehicle. These facts cannot be in dispute because they are on record so far as the appellant’s own evidence-in-chief and in cross-examination are concerned. Moreover the appellant himself admitted in cross-examination after exhibit 2 (a letter dated 2 February 1961 and written by him to the respondents) had been tendered that any negligence to repair was due to R. T. Briscoe (Ghana) Ltd. He went further to stress that the respondents were willing to have the vehicle repaired but he (the appellant) still demanded the payment of the amount for which the vehicle was insured.
Learned counsel for the appellant, however, urged upon the court that since the respondents did not repair the vehicle within the eight weeks which he had allowed, they were in breach of their contractual duty to repair after the expiration of eight weeks of grace and therefore were liable to pay damages assessed by him at £G3 per day in respect of taxi fares.
Now, is this submission attractive? Certainly it is not. Insurance companies are business men and in fact extremely so in all their operations.
[p.344] of [1971] 2 GLR 340
Where an insurance company has to decide whether to repair or to replace the car, or to pay the assessed value, in all cases, it invariably waits patiently for the engineer’s report, that is the report from the repairers. If the car is not beyond repair and can be repaired economically, the insurance company will not hesitate to pay the cost of repairs, if the cost will be by far less than the insured sum. It follows therefore that an insurance company would wait for the repairer’s report before it takes a decision. In the present appeal the appellant had admitted that he received the report from R. T. Briscoe (Ghana) Ltd. at Kumasi on 10 January 1961 and he was informed that the car would take within four weeks to repair. On 13 January 1961 the respondents intimated that they had opted to repair the vehicle no doubt upon seeing the repairers’ report. On the repairers’ own estimate, the vehicle would have been repaired by the middle of February 1961. If therefore there was any delay at all, then the delay would have commenced after the middle of February 1961. Yet as from 6 January 1961 to 2 February 1961 the appellant adopted a stand which can be summed up as “I do not want the car repaired but I want all of the £G560” when he knew that by the terms of the policy he could not dictate such terms.
What has been said before in this judgment are all primary facts on record based on the appellant’s own admissions. What is the reasonable inference to draw from these facts? What was the earliest opportunity open to the respondents to take a decision whether to repair or not? The answer must be after they had received the repairers’ report after 10 January 1961. What is the reasonable period during which the repairs could have been completed? The repairers estimated four weeks but the appellant himself said he allowed eight weeks to cover the taking of the decision to repair and the repairs to be undertaken. In March 1961 the appellant received a telegram exhibit C, from the respondents. The contents are not before this court but since it was tendered by the appellant, it must have been connected with the vehicle. There is no evidence that the appellant changed his stand and it seems difficult to appreciate how any insurance company can, without qualms, proceed with repairs when the owner of the vehicle has adopted a recalcitrant attitude against any repairs being carried out. The insurance company is bound to bide its time to ensure that whatever it does will be in its interests.
Learned counsel also argued that whatever delay was caused by R. T. Briscoe (Ghana) Ltd., must be deemed to have been caused by the respondents who instructed R. T. Briscoe (Ghana) Ltd., to repair. As already pointed out, the dual role of R. T. Briscoe (Ghana) Ltd. as insurance agents and as repairers must be clearly borne in mind. If any instructions to repair had been given at all, they could not have been at the time when the vehicle was towed but only after the engineer’s report had been received, that is on or about 10 January 1961, see exhibit B.
Learned counsel for the appellant in this respect cited the English case of Charnock v. Liverpool Corporation [1968] 3 All E.R. 473, C.A. where the Court of Appeal held that although there was a
contract by the owners’ insurers with the repairers to pay for the repairs, there was also [p.345] of [1971] 2 GLR 340
a contract between the repairers and the owner to carry out the repairs. The English Court of Appeal held further that there was an implied term of the repairers’ contract with the owner that the repairers would carry out the repairs within the reasonable time, namely, five weeks. The Charnock case was decided on the facts and Salmon L.J. stated in his judgment that it was a pure question of fact, whether there was a contract between the repairers and the owner to carry out the repairs.
There is no doubt that, under the terms of the policy in the present appeal, the appellant was permitted to authorise the repair of the motor car, where the estimated cost of repair did not exceed £G 10 provided the respondents were furnished forthwith with a detailed estimate of the cost which must be reasonable. It follows therefore that the appellant could not have authorised the repairs if the estimated cost was above £G10. The only persons who could have authorised and employed the repairers, R. T. Briscoe (Ghana) Ltd., to repair would have been the respondents. In any case, the appellant wrote in his letter, exhibit 1, demanding his insured sum of £G560 on 6 January 1961 before the report was prepared on 10 January 1961 and therefore it is reasonable to infer that he did not specifically authorise R. T. Briscoe (Ghana) Ltd., to go ahead with the repairs. If there was any contract to repair at all it was between the respondents and R. T. Briscoe (Ghana) Ltd., after the latter had submitted their report on the damaged vehicle and therefore the respondents normally would have been answerable for delays caused by R. T. Briscoe (Ghana) Ltd., after the report. The rather debatable point is who should be responsible for the period of delay from 2 November 1960 when the car was towed to 10 January 1961 when the report was prepared. During this period there was an existing contract between the appellant and the repairers R. T. Briscoe (Ghana) Ltd. Again until the report had been prepared, the respondents could not have authorised R. T. Briscoe (Ghana) Ltd. to carry out the repairs. In the absence of any evidence from R. T. Briscoe (Ghana) Ltd., it is impossible to say what cause of action and what remedies are available to the appellant against R. T. Briscoe (Ghana) Ltd. for not submitting their report until after two months from the date of towing the vehicle.
The appellant himself has admitted that the respondents throughout have not been negligent and by this it can be taken to mean that the respondents were also not negligent from the time the car was towed up to the time when the report was submitted on 10 January 1961. But it appears that after 10 January 1961 it was the intransigence of the appellant by refusing to accept the respondents’ option to repair the car which in our view caused the delay. This is a reasonable inference from his conduct and the appellant cannot be permitted to say that the respondents were in breach of their contractual duty to repair the damaged vehicle in reasonable time. Whether the respondents acted within reasonable time is a question of fact which can be inferred from all the circumstances. The court below was therefore right when it held that the defendants did act within a reasonable time and therefore they were not in breach of any
[p.346] of [1971] 2 GLR 340
obligation. There is evidence to support such an inference which is reasonable and it is not open to an appellate court to disturb that finding.
In conclusion, we hold that the appeal fails and should be dismissed.
DECISION
Appeal dismissed.
S. A. B.
