Farr v Mutual & Federal Insurance Co Ltd

• Jurisdiction: South Africa
• Judge: Louw J
• Judgment Date: 11 October 1999
• Docket Number: 2700/99
• Hearing Date: 14 September 1999
• Counsel: C A Nel for the applicant. I J Muller for the respondent.
• Court: Cape Provincial Division

Louw J:

Since 1987 the respondent has annually accepted insurance premiums from applicant and has in exchange C provided insurance cover to applicant in terms of respondent's Motorsure insurance policy.

The cover provided includes insurance against loss or damage to the applicant's motor vehicle and indemnity against liability to third parties. It is the latter with which we are here concerned. D

The relevant part of clause 2.1 of the policy reads as follows:

'2.1 In the event of an accident caused by or in connection with the vehicle . . . the insurer will indemnify the policy holder against all sums, including claimant's costs and expenses which the policy holder becomes legally liable for

2.1.1 death or bodily injury to any person; E

. . . .'

On 13 July 1996, one Paul Johnson was a passenger in applicant's motor vehicle which was driven at the time by the applicant. Near Swellendam there was an accident when applicant's vehicle collided with another vehicle. Johnson was injured in the collision and he now claims damages arising from his injuries from applicant. The respondent has repudiated any claim by applicant for F indemnification in terms of the policy against such claim by Johnson.

Applicant now asks for an order in effect declaring that respondent is obliged to indemnify him against any claim by Johnson arising out of injuries sustained in the collision. G

Respondent's repudiation of applicant's claim is based on the provisions of the exclusions clauses of the policy. Clause 2 of the exclusions reads as follows:

'2. Liability to third parties

The insurer will not be liable for:

2.1

Death of or bodily injury to

2.1.1

a member of the policy holder's family normally resident H with him

2.1.2

. . .

2.1.3

an employee, other than a domestic servant, of the policy holder or his family who is killed or injured in the course of such employment.

2.2

Damaged property

2.2.1

belonging to . . . the policy holder or his family.' I

Respondent contends that Johnson was at all material times a member of the applicant's family normally resident with applicant and that accordingly, in terms of the provisions of clause 2.1.1 of the exclusions, respondent is not obliged to indemnify the applicant against claims by Johnson arising out of injuries sustained in the collision. J

Louw J

I turn to the facts, which are largely common cause. A

The applicant is 66 years of age and is retired. He is permanently resident at 702 Saratoga, Beach Road, Sea Point, which property is registered in his name. Prior to his retirement the applicant followed a dancing career, having been a tap dancer and ballroom dancer in his time.

Paul Johnson is a freelance tap dancer who is a member of Jazz Arts, B a dance ensemble which operates under the Capab umbrella.

The applicant and Paul Johnson, who are not related by blood or marriage in any way, have maintained an unbroken and intimate relationship for the past 10 years. During these years Johnson has resided with the applicant at the applicant's home and he has all his personal possessions at applicant's home. Because of his profession, C Johnson is from time to time out of Cape Town. However when he returns to Cape Town he resumes his stay with the applicant at his home. Johnson has thus for the last 10 years been a member of the applicant's household. Johnson's income is modest and the applicant shoulders the main financial burden of the household and is its D principal breadwinner. He also does most of the cooking and household work. Johnson assists in these domestic chores from time to time.

The applicant and Johnson holiday together and share other occasions of recreation. They have mutual friends. They socialise together. Johnson is a beneficiary in the applicant's will. E

Neither the applicant nor Johnson is married. The applicant was once married and has a son born of that marriage which ended in divorce in 1962. Johnson has evidently also fathered a child born out of an earlier heterosexual relationship. Neither of these children lives with his respective father.

The applicant and Johnson live together in a sexual relationship in F what is commonly referred to as a homosexual or gay relationship. They are faithful to one another. Their relationship is characterised by their mutual love and affection for one another.

It is common cause that on these facts Johnson is 'normally resident' with the applicant as contemplated in clause 2.1.1. The only G remaining question is whether Johnson is 'a member of [the applicant's] family' as contemplated in the said clause of the policy.

Mr Nel, who appeared on...