Stinson Pearce Ltd v Queensland Insurance (Fiji) Ltd [1993] FijiLawRp 2; [1993] 39 FLR 282 (15 October 1993)

[1993] 39 FLR 282

HIGH COURT OF FIJI

Civil Jurisdiction

STINSON PEARCE LIMITED

v

QUEENSLAND INSURANCE (FIJI) LIMITED

Fatiaki J

15 October 1993

Contract - insurance - whether "forcible and violent" entry upon the insured premises - whether entry "a riot".

Four armed and masked men burst through the open door of a jeweller, smashed the display cases and stole the contents. The Insurers rejected the claim insisting that the doors having been open there had been no forcible and violent entry. The High Court HELD: the circumstances of the burglary amounted to forcible and violent entry and also amounted to riot.

Cases cited:

In re Calf and Sun Insurance Office [1920] KB 366
In re George and the Goldsmiths and General Burglary Insurance Association Ltd [1889] 1 QB 595
London and Lancashire Fire Insurance Co. Ltd v Bolands Limited [1924] AC 836

Action for breach of contract in the High Court.

B.N. Sweetman for the Plaintiff
R. Krishna for the Defendant

Fatiaki J:

In this action the plaintiff claims to be entitled to recover the sum claimed under a policy of insurance issued by the defendant and covering the period from 31.12.86 to 31.12.87.

The facts upon which the claim is based are not disputed and are set out in the agreed statement of Savitri Pratap which is reproduced below. She says:

"On the 6th August, 1987, at approximately 3.45 p.m. I was on duty as Manageress of Prouds Shop at Vitogo Parade, Lautoka. My assistant was Subadra, who has since emigrated from Fiji. There were two customers in the shop, Mrs. Peckham and Mrs. Lunn, together with one small daughter of Mrs. Peckham. The front doors of the shop were open. Three or four masked men suddenly burst into the shop, through the open door. Their faces were entirely hidden with the exception of eye holes, and they wore socks over their hands and arms.

They carried crowbars and axes. One of them placed an axe against my neck and said "Don't move." I had my hands on the counter but I took them off because feared they might chop my hands. The men then proceeded to smash the show cases in the shop with their axes and crowbars. The first case contained Mikimoto pearls and rings, the second contained gold jewellery, chains, bracelets, pendants, ear rings and diamond rings, and the third show case contained watches of Seiko and Pulsar Brands. After they had smashed open the show cases they swept the contents of the cases into sacks which they carried. I was terrified and my assistant and the customers also appeared shocked and terrified.

For many weeks afterwards I hated entering the shop as the scene continued to return to my mind. Once the shop breakers had swept the goods into their sacks they left as rapidly as they had entered and departed in a vehicle standing outside the shop. The whole episode probably only lasted 30 seconds.

(Sgd.) S. Pratap"

On those facts on the 14th of August 1987 the plaintiff (through its brokers) lodged 2 claims with the defendant insurers, one under a "plate glass insurance" policy for the repairs to its showcases, which was subsequently paid, and another, under a "burglary insurance" policy for the assorted items of jewellery and watches which were removed from the showcases and which latter claim has been the subject-matter of extensive correspondence between the professional advisors of the plaintiff and representatives of the defendant and is the subject matter of the present proceedings.

It is necessary to carefully consider the terms of the policy to see whether or not the plaintiff's claim is covered.

The policy document issued by the defendant is entitled: "Burglary Insurance Policy - Business Premises" and sets out the following contractual agreement between parties:

"In consideration of the insured named in the Schedule hereto having paid to QBE Insurance Limited (hereinafter called the Company) the Premium mentioned in the said Schedule. The Company Agrees That if at any time during the period of insurance stated in the said Schedule any of the property insured described in the Schedule whilst contained within the Premises (which shall not include any garden, yard, open verandah, outbuilding or appurtenances) specified in the said Schedule be lost or damaged as the result of:

(a) THEFT consequent upon actual forcible and violent entry upon the said premises or any attempt thereat

(b) THEFT or any attempt thereat by a person feloniously concealed in the said premises

the Company will pay to the Insured the value (as at the time of the loss) of the property lost or the amount of the damage or at its option reinstate or replace such property or part thereof."

The policy document then lists various exclusions including any loss or damage due to theft committed by any of the insured's family or any person or persons whilst lawfully on the premises and thereafter sets out several conditions including one which required the insured to take all precautions for the safety and protection of the property insured.

The Schedule to the policy is a Certificate and several pages of specifications of which the following are the most relevant:

"THE INSURED: Stinson Pearce Limited.

OCCUPATION: Principally Duty Free Dealers, Importers Wholesalers Retailers ...

INTEREST INSURED: On property, the Insured's own or held by them in trust or on commission for which the Insured is responsible...., the sums insured being understood to apply to: contents, stock of every description, merchandise

SITUATION: Anywhere in Fiji."

In my view in the absence of a more precise definition of 'the premises', the policy is apt to cover any premises at or out of which the insured is conducting its normal business or occupation. Accordingly there can be no doubting that the duty-free shop premises at 145 Vitogo Parade, Lautoka are within the location(s) contemplated by the broad terms of the policy.

Equally I am inclined to the view that the particular showcases in which the plaintiff's stock and merchandise was stored, whilst covered by the policy in the event of any damage being caused to them, is not and cannot be considered the actual "business premises". This is implicit in various terms and conditions of the policy which would be rendered meaningless if the plaintiff's showcases could be considered "the premises" for the purposes of the policy.