England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
Mr. M. Tugendhat Q.C.

		Royal Courts of Justice Strand, London, WC2A 2LL Thursday 22nd February 2001

LORD JUSTICE PETER GIBSON:

1. This appeal gives rise to a short question of construction of a private car insurance policy and of the application of the policy so construed to the particular facts. It is an appeal by the Defendant insurer, Norwich Union Insurance Ltd. ("Norwich Union"), from the order made on 22 October 1999 by Mr. Michael Tugendhat Q.C., sitting as a Deputy Judge of the High Court, giving judgment for the Claimant, Richard Hayward, and ordering Norwich Union to pay Mr. Hayward £74,648 (inclusive of interest) and, save for the costs of Norwich Union in respect of certain witness statements which costs were to be paid to Mr. Hayward, ordering Norwich Union to pay Mr. Hayward's costs. The appeal is brought with the permission of the Deputy Judge.
2. Mr. Hayward in November 1997 bought a Porsche 911 Carrera and insured it with Norwich Union. The policy contained the following terms:

"Section 1

Loss or damage to your car

If your car is lost, stolen or damaged, we may, at our option, either:

pay for your car to be repaired; or

replace your car; or

pay in cash the amount of the loss or damage.

....

The maximum amount we will pay will be the market value of your car but not exceeding your estimate of value shown in our records.

....

Exception to Section 1 of your policy

Your policy does not cover the following:

....

5. Loss or damage arising from theft whilst the ignition keys of your car have been left in or on the car."

3. Under "General Conditions", condition 5 was, so far as material, in the following terms:

"Your duty to prevent loss or damage

5. You should at all times take all reasonable steps to safeguard your car from loss or damage ...."

By General Condition 7 headed "Your duty to comply with policy

conditions", it was provided:

"Our provision of insurance under this policy is conditional upon you observing and fulfilling the terms, provisions, conditions and endorsements of this policy."

4. The policy had initially been issued on 3 July 1997 in respect of another car. On 14 November 1997 a policy amendment schedule was issued to substitute the new Porsche, and on the back of the schedule was a clause headed "REQUIREMENT FOR OUR APPROVED SECURITY PRODUCTS" in these terms

"We will not pay for any loss or damage under Section 1 to [the Porsche] caused by theft or attempted theft unless one of our approved vehicle security products is fitted and armed."

5. The Porsche was fitted with an alarm and immobiliser as required by the policy amendment schedule. The alarm/immobiliser was controlled by a remote handset or control unit which is smaller than a matchbox. The immobiliser operates automatically to immobilise the engine 30 seconds after the engine has been turned off and normally has to be disarmed by using the control unit. The control unit can also lock and open doors when the driver is outside the car. The key is used for operating the steering lock and ignition. Mr. Hayward's habit was to put the control unit behind a ridge under the driver's seat. His habit was also to leave the key in the ignition when he went to pay for petrol. These habits were deliberate because Mr. Hayward believed that the key was not effective protection against a thief, but that the immobiliser was. He understood that the car manufacturer itself said that the primary defence of the Porsche is not the key but the immobiliser.
6. On 18 February 1998 Mr. Hayward drove alone from Cardiff towards Newport in his Porsche. He needed fuel and at about 1.30pm stopped at a petrol station to fill up with petrol. It had two banks of pumps and he pulled up at an outer pump because the inner pumps were in use. On leaving the car, he did not remove the key which remained in the ignition, nor did he remove the control unit which was under the driver's seat and the doors were left unlocked. He filled the car up with petrol and went to the kiosk to pay. There he picked up a can of soft drink. One person was in the queue in front of him. Mr. Hayward was about 15 to 25 yards from the Porsche which was throughout within his field of vision, although he was not looking at it all the time. Whilst queuing to pay he heard the noise of the Porsche's engine. He was looking at the car from the rear and could see hardly anything of whoever was in the driving seat. He moved towards the car and as he did so he had a glimpse of an elbow or shoulder and it was clear that someone was in the driver's seat. He ran to the car and moved to open the passenger door, but it had been locked. He could see a man in the driver's seat holding a grey metal box with which he was fiddling. The man had not found the control unit. Mr. Hayward asked him what he was doing but the man took no notice. Mr. Hayward walked to the front of the Porsche. The engine was being revved very loudly and, from the look of the driver and the revving of the engine, Mr. Hayward felt threatened with being run over and so took a couple of steps back. The car was immediately driven away at high speed. In the car were a coat and a computer. The car and its contents have not been recovered.
7. The Deputy Judge found, on the basis of expert evidence, that the thief was a professional car thief and had a code grabbing or scanning device which can override the immobiliser fitted to the Porsche.
8. On 25 February 1998 Mr. Hayward made a claim under the policy. Norwich Union investigated the claim. By a letter dated 6 May 1998 Norwich Union refused to indemnify Mr. Hayward. It referred to the fact that the keys were left in the car prior to the theft, and to General Condition 5 and Exception 5 to Section 1 and said that it would appear that reasonable care was not taken to safeguard his car.
9. Mr. Hayward challenged the correctness of that decision. On 22 September 1999 he commenced proceedings in the Queen's Bench Division. He claimed that Norwich Union was in breach of contract in refusing to indemnify him. He claimed £65,000 for the car and a further £1,560 for the coat and computer. He also claimed a declaration that Norwich Union was estopped by representations from relying against him on Exception 5 to Section 1 and on General Condition 5. He further claimed that Norwich Union owed him a duty of care to attempt to obtain the return of the car and that it was negligent and breached that duty. Norwich Union by its Re-Amended Defence denied any breach of contract or duty of care and any representations giving rise to an estoppel. It alleged that Mr. Hayward breached the conditions in Exception 5 to Section 1 and alleged that he failed to take all reasonable steps to safeguard the vehicle from loss, and that in particular he failed to protect or secure the vehicle by removing the ignition key from it and to lock the vehicle before leaving it unattended. It further alleged that Mr. Hayward did not care whether or not the danger of theft was averted.
10. The action came before the Deputy Judge. In a full and careful judgment he first considered whether Norwich Union was right in submitting that the ignition key had been left in the car within the meaning of Exception 5. He found that the words "have been left" were ambiguous and accepted the submissions for Mr. Hayward that it meant "left unattended" and that the key has not been left in the car if the key is in the car but the driver is in a position to observe any attempt to interfere with the car and is so close as to have a reasonable prospect of preventing any unauthorised interference with it. The Deputy Judge said that his conclusion depended on the car having an immobiliser that was armed. It had also been submitted for Norwich Union that the loss arose from theft, not from robbery, and that Exception 5 therefore applied. The Deputy Judge expressed the view that a robbery occurred. But he held that a robbery was a theft within the meaning of the Exception.
11. The Deputy Judge next considered whether Norwich Union could rely on General Conditions 5 and 7. Relying on Sofi v Prudential Assurance Co. Ltd. [1993] 2 Lloyds Rep. 559, in which this court concluded, in relation to wording similar to General Condition 5 in a property insurance policy, that for the insurer to be entitled not to indemnify the insured more than negligence had to be established, the Deputy Judge held that only if there was recklessness could the condition be satisfied. He found that Mr. Hayward was not reckless. The Deputy Judge said that it followed that the true construction of General Condition 7 did not arise for consideration, but he expressed the view obiter that Mr. Hayward was negligent, placing undue trust in the efficacy of modern gadgetry, but that his negligence did not cause the theft.
12. Finally the Deputy Judge considered the claim by Mr. Hayward for breach of a duty of care by Norwich Union. He held that the claim failed because it depended on a merely speculative chance that the thief would accept a ransom payment for the return of the Porsche.
13. Norwich Union now appeals. It challenges the Deputy Judge's conclusions on Exception 5 and General Condition 5, though it now accepts that to succeed on the latter provision it must establish that Mr. Hayward was reckless. Mr. Hayward by a Respondent's Notice challenges the Deputy Judge's conclusion that Exception 5 covers cases of robbery. In the skeleton argument of Mr. Berry for Mr. Hayward he suggests that the relevant recklessness which had to be proved is a failure to take a precaution knowing that a danger existed but not caring whether or not it was averted. He says that this was not pleaded or proved and that it is not open to Norwich Union on appeal to take the point that Mr. Hayward was reckless and that his recklessness caused the loss. Mr. Hayward does not challenge the Deputy Judge's conclusion on duty of care.
14. The following questions therefore are in issue on this appeal:

(A) In relation to Exception 5 -

(1) was the ignition key "left in or on the car", and

(2) on the footing that the taking of the car was a robbery, was it also a "theft"?

(B) In relation to General Condition 5 -

(1) is it open to Norwich Union to argue that Mr. Hayward was reckless, and if so

(2) was he reckless, and if so

(3) did such recklessness cause the loss?

To succeed on this appeal, Norwich Union must establish that each question in (A) or (B), or both, should be answered in the affirmative.

(A) Exception 5

(1) "left in or on the car"

15. Mr. Sears, appearing for Norwich Union with Miss Ansell who had appeared alone before the Deputy Judge, criticises the approach adopted by the Deputy Judge to the question of construction. He submits that the plain and ordinary meaning of "have been left" is that the owner has gone away from the object without taking it and no longer has it in his possession and that those words are unambiguous. He further argues that if, contrary to his submissions, the Deputy Judge was right to find that "left" means "left unattended", on the facts the key was left unattended and Exception 5 applies. Mr. Berry submits that the Deputy Judge was clearly right for the reasons which he gave. He says that "left" is a word capable of many meanings, that "left unattended" is the correct meaning for the reasons given by the Deputy Judge and because Norwich Union's interpretation leads to foreseeable and foreseen unreasonable results, and that as at the least there is some doubt as to the meaning, the interpretation most favourable to Mr. Hayward must prevail.
16. No valid criticism can in my view properly be made of the way the Deputy Judge directed himself in a section of his judgment headed "Principles of construction of insurance policies". There he observed that insurance policies are contracts to which the general rules of construction of contracts apply and that the starting point is that words are to be given their ordinary and natural meaning as understood from the background against which the words were used or the meaning which the document would convey to the reasonable man. The Deputy Judge also referred to the common law rule that an ambiguity in the wording of a policy must be resolved against the party who prepared it, usually the insurer, and to The Unfair Terms in Consumer Contracts Regulations 1994, by Reg. 6 of which any doubt about the meaning of a written term will be resolved by adopting the interpretation most favourable to the consumer.
17. However, the application by the Deputy Judge of these principles is in my judgment more open to question as his approach was not to start at the starting point which he himself expressed and to consider at the outset what was the plain and ordinary meaning of the words in question but to consider whether the words were ambiguous and whether the results consequent on the adoption of a possible meaning were unreasonable. As Lord Hope said when giving the judgment of the Privy Council in The Melanesian Mission Trust Bank v Australian Mutual Provident Society (17 December 1996, unreported):

"Various rules may be invoked to assist interpretation in the event that there is an ambiguity. But it is not the function of the court, when construing a document, to search for an ambiguity. Nor should the rules which exist to resolve ambiguities be invoked in order to create an ambiguity which, according to the ordinary meaning of the words, is not there. So the starting point is to examine the words used to see whether they are clear and unambiguous."

18. Further, in considering whether there was an ambiguity the Deputy Judge referred to certain internal documents disclosed by Norwich Union. Two memoranda were cited by him. In one dated 31 July 1995 headed "Repudiation of claims made under the Motor Policy", the Claims Manager wrote of Exception 5:

"It is not always appropriate to interpret the keys exception on a literal basis, for example we would not be looking to determine the claim whereby the Policyholder had essentially been "hijacked" due to him being in the vehicle or standing adjacent to same, albeit that the keys may be in the ignition.

The inclusion of the key warranty in the policy was designed to give us the opportunity of repudiating claims where there has been a blatant abuse by the Policyholder for the security of his vehicle."

19. In another memorandum dated 24 October 1996 the Claims Manager said:

"Although the wording of all Personal Motor contracts is quite specific in that we will not consider a claim arising from theft whilst the ignition key is in or on the car, it has never been our intention to apply a strict literal interpretation of this wording. The full facts of the loss should still be investigated and repudiation only considered where we consider the Insured has acted recklessly. It is therefore important to ensure that any letter of repudiation also refers to the Insured's lack of reasonable care as well as his failure to remove the ignition key.

....

Keys left in the ignition whilst paying for petrol would be in breach of the Key and Reasonable Care condition and a repudiation letter should mention both.

We would not however consider repudiating a claim where the Policyholder has essentially been "hijacked" due to him being in or adjacent to the vehicle, albeit that the keys may be in the ignition."

19. For my part I do not see how the documents help on the objective interpretation of the words. The fact that the insurer chooses to apply the words in a particular way cannot govern their meaning. For sensible public relations reasons it may decide not to enforce the rights to which it is strictly entitled. There is no suggestion that Mr. Hayward was made aware of these internal documents before he contracted with Norwich Union. It would be as wrong, for example, to rely on the penultimate sentence of the second memorandum, which I have cited, to establish that Mr. Hayward's conduct came within the Exception as it would be to rely on the last sentence of that memorandum or the first sentence which I have cited from the first memorandum to establish that it did not.
20. The Deputy Judge found three possible meanings for "have been left". The first was that they meant the same as "are". I have to say that I do not think that meaning is a possibility. It was not a meaning contended for by either of the parties, and quite plainly the present tense of the intransitive verb "to be" referring to an existing state carries with it little of the connotation of the perfect passive of the transitive verb "to leave".
21. The Deputy Judge next considered Miss Ansell's submission that keys have been left in a car when the driver has left the keys in the car at a time when neither the driver nor a passenger is in the car. The Deputy Judge was clearly influenced by the example given by Norwich Union's Claims Manager of the hijacking of the car. Whilst the Deputy Judge accepted that Miss Ansell's meaning was a possible meaning, he regarded the hijacking example as demonstrating that it produced an unreasonable result and for that reason he preferred Mr. Berry's submission that keys are not left in the car if they are in the car whilst the car is itself attended. The Deputy Judge considered two authorities on vehicles being "left unattended". The first was Starfire Diamond Rings v Angel [1962] 1 Lloyds Rep. 217. At p. 219 Lord Denning M.R. said:

"I do not think the words "left unattended" are capable of any precise definition. It is a mistake for a lawyer to attempt a definition of ordinary words and to substitute other words for them. The best way is to take the words in their ordinary sense and apply them to the facts. In this case, the meaning of "left unattended" is, I think, best found by considering the converse. If a car is "attended", what does it mean? I think it means that there must be someone able to keep it under observation, that is, in a position to observe any attempt by anyone to interfere with it, and who is so placed as to have a reasonable prospect of preventing any unauthorised interference with it."

22. The Deputy Judge also cited lengthy passages from a decision of Otton J. in O'Donoghue v Harding [1998] 2 Lloyds Rep. 281, another case on whether a vehicle was left unattended. In that case a driver who drove into a quiet forecourt of a petrol station, selected the pump closest to the kiosk, locked the car, filled it with petrol, and went into the kiosk to pay, taking reasonable steps to keep the car under observation, was held not to have left the car unattended.
23. The Deputy Judge found the words "have been left" to be ambiguous and that Mr. Berry's interpretation was the most reasonable of the three meanings.
24. I start with the plain and ordinary meaning of the words "have been left" in the context of Exception 5. Those words are ordinary English words in a sentence in a policy which has been drafted in a user-friendly, untechnical way. The words should not have a meaning differing from that which any ordinary person would give them. In their ordinary usage they connote two things: (1) that the leaver of the keys has caused or allowed them to remain in or on the car, whether through choice or inadvertence, and (2) that that person has moved away from the keys. Both Mr. Hayward and the Deputy Judge seem to me to have provided examples of the use of the word "leave" in accordance with that meaning. Mr. Hayward in his statement to Norwich Union said "I .... left the key in the ignition". The Deputy Judge said "It is true that [Mr. Hayward] deliberately left the keys in the car".
25. It is appropriate, as Mummery L.J. suggested in the course of the argument before us, to consider the purpose of the Exception when construing and applying it. I do not accept Mr. Berry's submission that the purpose of the Exception is limited to that stated by the Claims Manager in the second sentence which I have cited from the first memorandum of 31 July 1995. Even if it could be taken that he was in a position to express Norwich Union's purpose in including the Exception, that is a subjective view. Viewed objectively, the obvious purpose of the Exception is to encourage policy-holders to take elementary precautions in relation to their ignition keys so as to reduce the risk of opportunist theft. Thus, where keys are left on the car, for example in the door or in the lock of the boot or on the bonnet or roof so as to be visibly available to the thief, and a theft ensues, Norwich Union has the right to refuse to indemnify the policy-holder. So too if the keys are left in the car, such as in the ignition or on the seat. The ordinary connotation of the words "have been left" is, in my opinion, entirely consistent with that purpose.
26. Mr. Berry also submitted that a purpose of the policy was to protect the policy-holder against the consequences of his own negligence short of recklessness and that the Exception should not be construed inconsistently with that purpose. Whilst that may be true in respect of some risks, I cannot accept that it is true in respect of theft to which the Exception specifically applies. The scope of the Exception must be ascertained from the language used in it.
27. It is always permissible to test whether words have a given meaning by considering whether they produce an unreasonable result if they have that meaning. The more unreasonable the result, the less likely it is that the parties intended the words to have that meaning. Three situations were canvassed in argument. One is where the driver leaves the key in the ignition while he fills up and pays for petrol at a time when there is a passenger in the car. Whether the keys have been left in those circumstances must, in my view, depend on the circumstances. If the passenger is an adult in whose charge the keys have been left so that such person stands in for the driver, then on the plain and ordinary meaning of the words of the Exception the keys have not been left in the car. But if the passenger is, for example, a small child, then the presence of the passenger will not prevent the keys from having been left. A second situation is where there is a hijacking, the driver for example being pulled out of the car while the keys are in the ignition. In my judgment such duress prevents the keys from being "left" in the car. In truth in ordinary language the keys in that situation have been taken from the driver, not left by him. The third situation is where the driver, whilst the ignition keys are in the car, gets out of the car to attend to a child in the back of the car or to take something out of the boot and the thief gets into the driving seat and drives off with the car. Mr. Sears, consistently with Norwich Union's argument below, initially argued that the keys had been left but later accepted that the driver in the posited situation was sufficiently proximate to the keys so that they had not been left. I do not see that any of those situations shows that to give the words their plain and ordinary meaning produces so unreasonable a result as to require a different meaning to be given to them.
28. The submission of Mr. Berry, which found favour with the Deputy Judge, that "have been left" means "have been left unattended" adds the word "unattended" as a gloss to the actual words of the policy. That is a surprising addition to be implied, given that the phrase "left unattended" has long been well-known in the insurance field from cases such as Starfire on "vehicles left unattended". Mr. Berry sought to apply to the Exception the test laid down by Lord Denning in the passage which I have cited in para. 22 above. But there are two difficulties with that. The first is that Lord Denning was considering a phrase where "unattended" was express. The second is that the considerations which apply to the phrase "vehicles left unattended" differ from those which apply to "ignition keys .... have been left in or on the car". Take the facts of O'Donoghue. It is only natural that the court will be unwilling to accept that a vehicle is left unattended when the driver behaves as the prudent driver in O'Donoghue did when performing the ordinary and necessary function of filling up the car with petrol and paying for the petrol. What more could the driver do? He could hardly take the car with him into the kiosk. Contrast the case of a policy worded as Exception 5 is worded. True it is that the driver who performs the ordinary and necessary function of filling up the car with petrol has to pay for the petrol. But he has the choice of taking the keys out of the ignition and carrying them with him when paying. Even if "left" were to be construed as "left unattended", it would not follow that the same test should apply to keys being left unattended as to vehicles being left unattended. For my part, I see no justification or necessity for implying the word "unattended" into the Exception. In my view the Deputy Judge erred in making that implication.
29. Mr. Berry submitted that there was no ambiguity because the words "have been left" meant "left unattended". But if he was wrong on that, he said that there was ambiguity, alternatively doubt. He attempted to demonstrate that by pointing to the slightly different ways in which Mr. Sears had expressed the meaning of "have been left", for example by referring to the leaver of the keys sometimes as the driver and at other times as the owner. I cannot accept that as a method of establishing an ambiguity. The court is not concerned with counting the number of alternative submissions of the parties but with whether the language used, when properly construed, admits of more than one equally valid interpretation. In such a case there is an ambiguity in its true sense. I accept that on the application of the words "have been left" there may be difficulties. For example, both Mr. Sears and Mr. Berry accepted that the words connote some moving away from the keys and in some circumstances it may not be easy to decide what degree of proximity is required for the person who has caused or allowed the keys to remain to have left the keys. It is a question of fact and degree. As Rix L.J. suggested in the course of argument, the test must be whether that person is close enough to make a theft unlikely. But such difficulties of application do not lead me to conclude that the words are ambiguous or that their interpretation is doubtful such that some other interpretation more favourable to the consumer must be adopted. The meaning is plain.
30. In my judgment therefore the Deputy Judge erred in relation to the first question, perhaps because both sides before him argued for somewhat extreme meanings. That led him to choose the one he regarded as producing less unreasonable consequences. On the plain and ordinary meaning of the Exception one looks to see whether the keys have been caused or allowed to remain in or on the car by a person who has moved away from them, no one else being left in charge of the keys.
31. I turn next to the application of that meaning to the facts.
32. The Deputy Judge concluded that the key had not been left unattended, because, although Mr. Hayward had deliberately left the key in the car, he did so in the reasonable belief that the immobiliser was the car's principal defence against theft. He said that Mr. Hayward kept a proper and reasonable lookout and was not dilatory, that he was not absent for more than a few moments and could see and hear the Porsche and that when he did hear the engine of the Porsche he was able to be within touching distance of the car before it moved off. The Deputy Judge said that the chance that someone would have come up while he was in the kiosk and overridden the immobiliser and then put him in fear of being run over was extremely remote. He stressed that his conclusion depended on the car having an armed immobiliser and was not the ordinary case of a car being stolen while the key was in the ignition.
33. Even on the basis of the meaning which the Deputy Judge was applying, I find it hard to understand how the crucial factor for a conclusion that the ignition keys had not been left unattended could properly be the fact that the car had an armed immobiliser. That fact may explain why Mr. Hayward left the keys in the car and may go to the reasonableness of his actions. But I cannot accept that it provides much help on the question whether the keys were left unattended. As Mr. Sears pointed out, once the thief had entered the car, he was able to lock the doors and Mr. Hayward was unable to attend upon the keys because they were locked inside the car.
34. But for the reasons already given the Deputy Judge was not applying the right meaning of the Exception. Mr. Berry submitted that if the meaning was as I have suggested, the keys had not been left because Mr. Hayward was close enough to be able to get to the car and stand in front of it before the thief was able to drive it away. It was only the threat of violence, he said, which caused the relevant loss. He likened the present case to a hijacking.
35. I cannot agree. No violence, or threat of violence, caused or attended the leaving of the key. The facts seem to me to speak for themselves. Mr. Hayward had caused the key to remain in the ignition when he moved 15 to 25 yards away from the car in circumstances in which he did not see the thief open the car door, get into the car, shut the door, lock the doors and start the engine before Mr. Hayward was alerted by the engine noise to the fact that the theft was occurring. He had moved too far away from the key to make the prevention of a theft likely. On any ordinary use of language, Mr. Hayward had left the ignition key in the car.
36. I would therefore respectfully disagree with the Deputy Judge on the first question which I would answer in the sense that the ignition key was left in the car.

(2) "theft"

37. The Deputy Judge's conclusion that a robbery occurred is not challenged by Norwich Union. Mr. Berry says that Exception 5 in terms applies only to a loss arising from theft, and he draws attention to the absence of the word "theft" from the words of Section 1 "If your car is lost, stolen ...." He argues that the insurers clearly meant to limit the exception to theft simpliciter and to leave unaffected aggravated forms of the offence, in particular robbery. He submits that the sense of that is obvious and that to a layman theft does not include robbery. Again he says that alternatively there is some doubt as to whether the Exception applies to robbery, and that any such doubt must be resolved against the insurer. He contends that where the insured is close enough to prevent the removal of the car and only fails to do so because of violence, the only reasonable construction of the word theft is to exclude theft with violence.
38. Again I cannot agree. The plain and ordinary meaning of theft is that contained in s. 1 Theft Act 1968:

"A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it, and "thief" and "steal" shall be construed accordingly."

S. 8 (1) provides the meaning of robbery:

"A person is guilty of robbery if he steals and immediately before or at the time of doing so, and in order to do so, he uses force on any person or puts or seeks to put a person in fear of being then and there subjected to force."

39. As Mr. Sears says, all robbery is theft, but not all theft is robbery. In my judgment, what occurred was plainly the theft by the thief of the Porsche. A robbery may also have occurred, but that is immaterial when violence played no part in the leaving of the keys. If through violence the keys are in or on the car, then for the reasons already given the keys are not left in or on the car. I can see no sufficient reason why the plain and ordinary meaning of "theft" as including robbery should be displaced in the Exception so as to exclude robbery. It is to be borne in mind that a condition of the application of the Exception is that the keys have been left in or on the car. In all other circumstances the policy-holder will be indemnified if he has suffered loss or damage through robbery. To interpret the Exception to exclude robbery from a reference to theft would run counter to the purpose of the Exception (see para. 26 above).
40. In my judgment there is nothing in Mr. Berry's submission that significance is to be attached to the differences in language between Section 1 and Exception 5. As we have seen from s. 1 Theft Act 1968 "steal" is to be construed in accordance with the definition there given of "theft", and in the definition of robbery theft is an essential element by reason of the reference to stealing.
41. For these reasons therefore on this question I am in respectful agreement with the Deputy Judge that what occurred was a theft for the purposes of Exception 5. But because of my conclusion on question (1), I would allow this appeal.

(B) General Condition (5)

42. We have heard no argument on these questions in view of our conclusion on Exception 5 and I prefer to say nothing about them.

LORD JUSTICE MUMMERY:

43. I agree.

LORD JUSTICE RIX:

44. I also agree.
ORDER: Appeal allowed. The order of the judge to be set aside, Judgment for the claimant and the repayment of £79,020.37. We rescind the costs order made below and make no order as to costs either here or below. Application for permission to appeal to the House of Lords refused. (Order does not form part of approved Judgment)