Automobile Fire & General Insurance Company of Australia Ltd v Davey [1936] HCA 16; (1936) 54 CLR 534 (29 April 1936)

The Automobile Fire and General Insurance Company of Australia Limited Appellant; and Davey Respondent.

In this case the Court is asked to determine the meaning of a clause in an insurance policy which provides that "if the insured or his wife" shall in specified circumstances sustain bodily injury certain sums shall be payable in the events stated in the policy. The policy was issued to a married woman. Her husband received bodily injury in the circumstances set out in the policy and died as a result thereof. The widow, the insured, now claims against the company.

The agent of the company knew that the insured was a married woman when she signed the proposal form on 25th June 1934. In this form her occupation was given as "housewife." On 28th June 1934 a receipt was given to the insured in which she was described as Mrs. A. V. Davey. The policy was issued on 29th June 1934.

The policy consists of a printed form, with particulars of dates and description of car and amount of premium filled in. Throughout the policy the words "he" and "his" are used for the purpose of indicating the insured or persons or property, &c., insured. It is clear that in order to give efficacy to the transaction according to the evident intention of the parties, such words as "he" and "his" must be construed as meaning (as they are obviously meant to mean) "the insured" and "the insured's" respectively.

It is contended that similar reasoning shows that the phrase "the insured or his wife" in the clause of the policy already mentioned must receive a similar interpretation and that it should be read as meaning, in the case of this policy, "the insured or her husband." It is pointed out that unless this construction is adopted the words "or his wife" become meaningless, and reliance is placed upon the rule that every endeavour should be made to find a meaning for each word contained in any document evidencing or constituting a legal transaction.

I regret that I find myself unable to accept this reasoning. I agree that it is necessary to interpret the words "he" and "his" in the manner stated. The reason for adopting such an interpretation is that it is clear upon the face of the document that these pronominal words are intended to refer to the insured. Different considerations appear in the case of the phrase "the insured or his wife." They show that when the company was insuring a man they were prepared to give certain protection to him in the event of his wife being injured. It does not appear to me to follow as a matter of course that the company was necessarily prepared, in a case where a woman was insured, to give corresponding protection in respect of her husband. The words in themselves are plain and they have no application in the case of the present policy. To read the word "wife" as including "husband," would really be to alter the words of the policy and not to interpret them.

The Property Law Act 1928, sec. 61, provides that "in all deeds, contracts, wills, orders and other instruments executed, made or coming into operation after the commencement of this Act, unless the context otherwise requires ... (d) The masculine includes the feminine and vice versa."

In my opinion sec. 61 is a general provision to be interpreted and applied according to its terms and not to be read down by limiting it to matters affecting property. Sec. 61 (d) applies, however, only to words which are simply masculine or feminine and not to words which in their meaning include a masculine or feminine element but also some other element. "He" and "she" are merely words of gender. "Husband" and "wife" include gender as an element, but they also connote a particular relationship to another person. It has, so far as I am aware, never been suggested that legislation requiring a husband to support his wife means that the wife is under an obligation to support her husband. It would be difficult, I think, to contend successfully that an insurance policy giving protection to menservants equally included maidservants. Thus the fact that there is some masculine or feminine content in the meaning of the word under consideration cannot in itself justify the application of sec. 61 (d). For this reason I am unable to take the view that sec. 61 would justify a Court in reading, in this document, the word "wife" so as to include "husband."

The appellant company issues what is known as a comprehensive automobile policy. It issued such a policy, on a printed form, to the respondent, who was a married woman. One of the clauses in the policy provided: "If the insured or his wife shall whilst under the age of sixty-five years" (in certain specified circumstances) "sustain any bodily injury caused by accidental violent external and visible means, the company will pay to the insured or his legal personal representatives the compensation" thereinafter "specified, provided that such injury shall solely and independently of any other cause ... within three calendar months of the accident result in ... death." The respondent made a claim under the policy in respect of the death of her husband, which was referred to arbitration. It appeared on the facts proved or admitted before the arbitrator that the husband was killed in a motor accident, covered by the terms of the clause set out above if he was within the description of the risk insured. No claim for rectification of the policy was made or suggested. The arbitrator was of opinion that the appellant company was not liable on the policy, but stated a case, upon which Mann C.J. held that it was liable.

The only question is whether, on a proper interpretation of the clause, the husband is within the risk insured. He was not the insured, nor was he the "wife" of the insured, in the ordinary and natural meaning of the word. It was said, however, that the subject or the context indicated that the clause could or should not be given its natural meaning, or else that to give it such a meaning involves some inconsistency with the rest of the policy. It is true enough that, as applied to a woman, the word "wife" in the clause is void of meaning. But the policy is a printed one, appropriate enough in the case of males. The fact that the form was carelessly used and applied in the case of a woman does not manifest any intention that the word "wife" should be understood in a sense quite contrary to its natural meaning, nor authorize the Court to deviate from that meaning. Moreover, to depart from the natural meaning of the expression would impose, I should think, quite a different risk upon the appellant. The argument regarding consistency is based upon the use of the pronoun "his" after the word "insured." But this word causes no difficulty, for the context makes it plain that it is only a substitute word, or proxy, for "the insured," who, in the policy before us, was a woman.

The provision of sec. 61 (d) of the Property Law Act 1928 was also relied upon: "In all deeds, contracts, wills, orders and other instruments executed, made or coming into operation after the commencement of this Act, unless the context otherwise requires ... (d) The masculine includes the feminine and vice versa." Gender or sex may be denoted by a change of word, and "wife" is the feminine of "husband." But the words "husband" and "wife" denote much more than gender or sex, they also import a relationship. In order to ascertain the proper interpretation of the word "wife" in the policy now before the Court, the subject matter of the policy must be considered, as well as its general scope and language (Chorlton v. Lings[1]; Viscountess Rhondda's Claim[2]). Here the word "wife" expresses a certain relationship to the insured, and is not merely a mode of denoting gender or sex. The context excludes the application of such a provision as is contained in sec. 61 (d) of the Property Law Act 1928, even if that section includes commercial contracts and policies of insurance within its terms—a matter upon which for the present I prefer to express no concluded opinion; though it will be observed that the Act purports to consolidate and amend the law relating to conveyancing and real property.

The appeal should be allowed, and effect given to the award of the arbitrator set out in the ninth paragraph of the case stated by him.

The question raised by this appeal is altogether one of interpretation. The authority of the arbitrator may have been wide enough to direct rectification of the policy of insurance, but no attempt was made before him to prove the making of an antecedent contract of insurance the true effect of which the policy failed to express.

In terms the policy covers the death or bodily injury of the insured or his wife, and, as the deceased was the insured's husband, his death is not within the description of risk insured against if that description is interpreted according to the natural meaning of the words in which it is expressed.

To give the expressions used a secondary meaning which will include her husband's death, the insured appeals, first, to the rule established by sec. 61 (d) of the Property Law Act 1928 Vict., by which in all instruments, unless the context otherwise requires, the masculine includes the feminine and vice versa, and, secondly, to the general principles of interpretation which require that effect should be given to the intention found in a writing, notwithstanding the use of particular words inappropriate for its correct expression, or the absence of language specifically stating it.

The rule laid down by sec. 61 (d) of the Property Law Act 1928 relates only to the gender which terms may import. It means that the use of pronouns or generic terms which, prima facie, are of one gender shall not exclude the other of the two genders. But the description "wife" imports a status which differs from the status imported by the word "husband" in much besides gender. It is not the only example of words describing conditions appropriate to one only of the two sexes but having a counterpart in a condition appropriate to the other sex. In the case of such expressions, it may be said that they are used intentionally to designate one sex and so overcome the prima facie application of the statutory rule of interpretation. But I think it is more accurate to say that they are not within the rule because they are not words describing a class or category which, apart from the gender of the words, would include both sexes.

The contention upon which the insured's claim must depend is that from the written instruments constituting the contract of insurance, when considered in their entirety, there sufficiently appears an intention to insure a married woman against various risks attending her ownership of an automobile, including the risk of the death of her husband. No doubt it is important to give a steady and perhaps liberal application to the principle that the words are not the chief thing in a writing but the intent and design of the makers (cp., per Willes C.J., Smith v. Packhurst[3]).

The common use of printed forms gives a new and more frequent application to the rule of interpretation which authorizes Courts to disregard particular expressions and even provisions and to understand them in a sense varying from that which they exactly express. But an essential condition must be fulfilled before such a course is justified. The document itself, when applied to the circumstances and explained by such evidence as is legitimate, must contain indications of the real meaning of the parties which are sufficient to produce a reasonable certainty as to their intention in reference to the matters that are material.

In the present case, it is true that a printed form appropriate to a comprehensive insurance of a male owner of a motor car has been used to express a contract insuring a married woman. It is true that the comprehensive cover stated in the printed form extends to the death and bodily injury of a wife. But from these facts and from the consequences in detailed textual interpretation to which the use of the masculine leads, it cannot be safely inferred that the insurer intended to cover the risk of a husband's death or bodily injury. The ground is not enough to justify the consequence. The document does not clearly convey to the mind an intention, mistakenly expressed, to include that risk. It may be that the insurer was or would have been content to provide that cover. But a Court cannot say that the insurer has done so. All that appears is that in the case of a male owner it would be content to cover his wife, if he had one.

For these reasons I think the appeal should be allowed and the order of Mann C.J. discharged. In lieu thereof it should be ordered and declared that the insured is not entitled to recover from the respondent company the compensation mentioned in the award of the arbitrator.

If it were clear that it was the real intention of the contract to cover the risk of accident to the insured's husband, mere inadvertence or inaccuracy in the expression of that intention would not prevent the contract being construed so as to cover that risk. But it is impossible to collect that intention from the intrinsic evidence of the policy and the proposal. The policy is embodied in a printed form, and, while the words "the insured" may refer to a married or unmarried man or woman or a firm or a company if any of these were the party insured, it does not appear on the face of the document that the words "or his wife" in the longer expression "the insured or his wife" were intended to have any operation when the printed form is used, as here, to express the contract between the appellant company and a married woman. There is no ground for the presumption that the words "or his wife" were intended to cover the risk of accident to the husband of the insured. It is impossible to read this expression as "his or her spouse," or to say that its true meaning is to be gathered by expanding it so as to read "or his wife or her husband."

The respondent relied upon sec. 61 (d) of the Property Law Act 1928, which provides that in the instruments therein mentioned, unless otherwise required by the context, "the masculine includes the feminine and vice versa." The application of sec. 61 (d) is not excluded by reason of the nature of the instrument now in question, but it does not enable the word "wife" to be read as "husband." The classifications denoted respectively by the words "the masculine" and "the feminine" are based on the discrimen of gender, and the section makes applicable to both classes nouns and pronouns which ordinarily serve the grammatical purpose of distinguishing between them. The words "husband" and "wife" are distinctive of status, although it is true that they signify persons not of the same gender. But neither word is a synonym or an equivalent for a description of a person by reference to gender. "Husband" is not the masculine of "wife," as, for example, the word "he" is the masculine of "she."

Appeal allowed. Judgment of the Supreme Court of Victoria dated 17th October 1935 set aside. Declare that upon the proper construction of the policy of insurance in the award in the form of a special case mentioned the company is not liable to the insured. Order that A. V. Davey, the respondent, do pay to the company, the appellant, the costs of and incidental to the reference of the said case to the Supreme Court and also the costs of this appeal.

[1] (1868) L.R. 4 C.P. 374.

[2] (1922) 2 A.C. 339.

[3] [1741] EngR 444; (1742) 3 Atk. 135, at p. 136; 26 E.R. 880, at pp. 880, 881.

High Court of Australia

Automobile Fire & General Insurance Company of Australia Ltd v Davey [1936] HCA 16; (1936) 54 CLR 534 (29 April 1936)

HIGH COURT OF AUSTRALIA