INSURANCE – Contract of Insurance – Appropriate question to be asked and answered in respect of a company’s insurance policy

10/07/2024

“In the High Court, the learned trial Judge posed for himself the question whether or not the defendant received a copy of the insurance policy. We have no doubt that this is an erroneous approach to the matter in dispute. On this point, this Court observed in Wuraola’s case, supra, as follows: “The question to ask and be answered is whether the documents Exhibit A, B and L (proposal form) do not so much refer to the company’s usual form of contract as to compel a Court to hold that that policy is incorporated by reference in the contract of the parties. We have come to the conclusion that the documents put in issue in this case and the evidence given on both sides point unequivocably to the existence as between them of a policy of insurance… In our view therefore the pertinent question was and is whether the plaintiff was bound by the terms and conditions of the policy and certainly not whether or not he had a copy of that policy.” In Wyndham, Rather Ltd v. Eagle Star British Dominions Insurance Co. Ltd (1925) Ll. L.R. 214, the Court of Appeal held that the doctrine of incorporation by reference involving the inclusion in the contract of all the documents which by and from the evidence put before and accepted by the Court the parties must have had in their contemplation at the time of entering into the contract.”

Per COKER, JSC in THE YORKSHIRE INSURANCE CO LTD V. HAWAY (1969) LCER-518(SC) (Pp 14 – 16, Paras E – A)