TAM HING WAH AND ANOTHER v. MO CHOI AND OTHERS

TAM HING WAH AND ANOTHER v. MO CHOI AND OTHERS

The court found that at the time of the accident the vehicle was being driven by the first defendant in the course of his employment for the restaurant for the benefit of the restaurants business; although the first defendant was an authorised driver, that use fell outside the policys permitted "Limitations as to Use" (and alternatively would be a disqualifying dual use), therefore the insurer (Pacific) was not liable and the defendants claim for indemnity was dismissed. The defendants were not estopped from raising the agency/employment defence.

Citation
TAM HING WAH AND ANOTHER v. MO CHOI AND OTHERS
Parties
1st Plaintiff: Tam Hing Wah; 2nd Plaintiff: Madam Cheng Sinn-Mei; 1st Defendant: Mo Choi; 2nd Defendant: Pearl City Restaurant & Night Club Management Company Limited; Third Party: The Pacific Insurance Company Limited
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
26 November 1986
Case Number
HCA7270/1985
Procedural Posture
Personal Injury Claim With Third Party Indemnity / Trial on Indemnity Issue Between Defendants and Insurer After Consent Judgment; Judgment Delivered
Outcome
Defendants' claim for indemnity against the third party Pacific dismissed; previous consent judgment against defendants for plaintiffs remains.
Legal Topics
Vicarious Liability, Authorised Driver, Limitations as to Use, Dual Use Doctrine, Estoppel/res Judicata, Policy Construction, Indemnity
Source Language
EN
Tort Insurance Law Agency Law Contract Law Employment Law Vicarious Liability Authorised Driver Limitations as to Use +4 more

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Parties

Tam Hing Wah

1st Plaintiff

Madam Cheng Sinn-Mei

2nd Plaintiff

Mo Choi

1st Defendant

Pearl City Restaurant & Night Club Management Company Limited

2nd Defendant

The Pacific Insurance Company Limited

Third Party

Procedural Posture

Personal Injury Claim With Third Party Indemnity / Trial on Indemnity Issue Between Defendants and Insurer After Consent Judgment; Judgment Delivered

Legal Issues

  1. 1 Whether the first defendant was an authorised driver under the policy
  2. 2 Whether use of the vehicle at time of accident fell within the policys permitted 'Limitations as to Use'
  3. 3 Whether the defendants were estopped or precluded from raising agency/ employment defences by prior admissions or consent judgment

Ratio Decidendi

The court found that at the time of the accident the vehicle was being driven by the first defendant in the course of his employment for the restaurant for the benefit of the restaurants business; although the first defendant was an authorised driver, that use fell outside the policys permitted "Limitations as to Use" (and alternatively would be a disqualifying dual use), therefore the insurer (Pacific) was not liable and the defendants claim for indemnity was dismissed. The defendants were not estopped from raising the agency/employment defence.

Court Disposition

Defendants' claim for indemnity against the third party Pacific dismissed; previous consent judgment against defendants for plaintiffs remains.

Orders

  • Defendants' claim against The Pacific Insurance Company Limited dismissed.
  • Consent judgment for plaintiffs against defendants in the sum of 700000 HKD remains in force.