Bruwer v Nova Risk Partners Ltd

• Jurisdiction: South Africa

Bruwer v Nova Risk Partners Ltd
2011 (1) SA 234 (GSJ)

2011 (1) SA p234

Citation	2011 (1) SA 234 (GSJ)
Case No	2008/16953
Court	South Gauteng High Court, Johannesburg
Judge	CJ Claassen J, Masipa J and Coppen J
Heard	October 21, 2010
Judgment	October 25, 2010
Counsel	J van Rooyen for the appellant.; BP Geach SC for the respondent.

Flynote : Sleutelwoorde D

E Insurance — Policy — Interpretation — Policy including both general and specific duty to disclose — Principle of expressio unius est exclusio alterius applying to exclude disclosure not specifically referred to — Restrictive interpretation required for any provision placing limitation upon clearly expressed obligation to indemnify — Where inclusion of both general and specific F duties to disclose creating ambiguity, interpretation favouring insured to be followed — Requesting specific disclosure representing to insured that insurer not interested in information not requested, entitling insured to assume same.

Headnote : Kopnota

G The respondent insurer's repudiation of the appellant's insurance claim for accident damage to his motor vehicle was unsuccessfully contested in High Court proceedings. The reason for the repudiation was the appellant's failure to disclose to the respondent a conviction for reckless and negligent driving and the resulting endorsement of his licence, as well as his failure to have furnished respondent with documentation to enable it to investigate H the claim. In an appeal to a full bench of the same division, the issue for determination was whether the repudiation was justified in the light of the facts and the provisions of the policy. The relevant clauses of the policy read as follows:

'3. Claims

I If anything happens that could result in a claim you must -

. . .

3.1.7

immediately advise the Company as soon as you become aware of any possible prosecution or inquest.

J . . .

2011 (1) SA p235

6. Disclosure A

You must inform the Company of all facts that are material to the acceptance of the insurance or the premium that is charged. If you fail to do this, the Company may, at its option, declare this policy void. As this also applies during the currency of this policy, any changes must be reported immediately. B

(It is therefore important for you to disclose all material facts that may be of relevance to the Company.)'

Held, that the principle of interpretation specifically apposite to the construction of the disputed clause was that of expressio unius est exclusio alterius, meaning that, if a document contained special reference to a particular thing, it could be assumed that the parties intended to exclude everything else, even that C which would have been implied in the circumstances, had it not been for the special reference. Also relevant were the rules pertaining to the construction of insurance policies: (a) that clauses expressed in vague or ambiguous language purporting to set a limitation or exclusion of an insurer's obligations to the insured had to be interpreted in favour of the insured; (b) that ambiguities had to be construed in favour of the insured; and (c) that exclusionary clauses had to be strictly applied so as to uphold the policy D against forfeiture. (Paragraphs [27] - [29] and [43] at 245C - 246B and 250E.)

Held, further, that the interplay between the specificity of clause 3.1.7 and generality of clause 6 resulted in uncertainty. Clause 3.1.7 required information regarding 'any possible prosecution', and nothing else, and the E respondent's failure to specifically include a demand for information regarding conviction and sentence had to redound to its disadvantage. The appellant should not be prejudiced for having complied meticulously with the contents of the clause. (Paragraphs [32] - [34] at 246F, 246H and 247D - E.)

Held, further, that the respondent's failure to expressly stipulate that information F regarding a conviction, sentence and/or endorsement of a licence was required, amounted to a representation to the insured that no information beyond any prosecution was required. The appellant was accordingly entitled to assume that the respondent was not interested in obtaining information of actual convictions, sentences or endorsements of licences. The fact that the appellant did not disclose his conviction and sentence, was not in breach of his contractual duties. There was therefore no G non-disclosure, and the question of materiality did not arise. (Paragraphs [35] - [36] 247F and 248B - E.) Appeal upheld.

Cases Considered

Annotations

Reported cases H

Southern Africa

Ameen v SA Eagle Insurance Co Ltd 1997 (1) SA 628 (D): referred to

Auto Protection Insurance Co Ltd v Hanmer-Strudwick 1964 (1) SA 349 (A): dictum at 354A - F applied

Blackshaws (Pty) Ltd v Constantia Insurance Co Ltd 1983 (1) SA 120 (A): referred to I

Botha's Trucking v Global Insurance Co Ltd 1999 (3) SA 378 (T): dictum at 382H applied

Cargo Africa CC v Gilbeys Distillers and Vintners 1996 (2) SA 324 (C): referred to

Cinema City (Pty) Ltd v Morgenstern Family Estates (Pty) Ltd and Others 1980 (1) SA 796 (A): referred to J

2011 (1) SA p236

Commercial Union Insurance Co of SA Ltd v Lotter 1999 (2) SA 147 (SCA) ([1999] 1 All SA 235): referred to A

Concord Insurance Co Ltd v Oelofsen NO 1992 (4) SA 669 (A): referred to

Fedgen Insurance Ltd v Leyds 1995 (3) SA 33 (A): dictum at 38A - C applied

Heslop v General Accident, Fire and Life Assurance Corporation Ltd 1962 (3) SA 511 (A): dictum at 514E compared

Jonnes v Anglo-African Shipping Co (1936) Ltd 1972 (2) SA 827 (A): referred to B

Joubert v Enslin 1910 AD 6: referred to

Kliptown Clothing Industries (Pty) Ltd v Marine and Trade Insurance Co of SA Ltd 1961 (1) SA 103 (A): dictum at 107C applied

Lange and Co v The South African Fire and Life Assurance Co (1867) 5 Searle 358: referred to C

Marine and Trade Insurance Co Ltd v Van Heerden NO 1977 (3) SA 553 (A): referred to

Mutual & Federal Insurance Co Ltd v Da Costa 2008 (3) SA 439 (SCA): dictum in para [12] applied

Mutual and Federal Insurance Co Ltd v Oudtshoorn Municipality 1985 (1) SA 419 (A): D referred to

Pereira v Marine and Trade Insurance Co Ltd 1975 (4) SA 745 (A): referred to

Poynton v Cran 1910 AD 205: referred to

President Versekeringsmaatskappy Bpk v Trust Bank van Afrika Bpk en 'n Ander 1989 (1) SA 208 (A): referred to

Qilingele v South African Mutual Life Assurance Society 1993 (1) SA 69 (A): referred to E

R v Vlotman 1912 AD 136: referred to

Resisto Dairy Pty (Ltd) v Auto Protection Insurance Co Ltd 1963 (1) SA 632 (A): dicta at 643B - C and 645D applied

Sikweyiya v Aegis Insurance Co Ltd 1995 (4) SA 143 (E): referred to F

Silverstone v North British and Mercantile Insurance Co 1907 ORC 73: referred to

Weber v Santam Versekeringsmaatskappy Bpk 1983 (1) SA 381 (A): referred to.

England G

Hair v Prudential Assurance Co Ltd [1983] 2 Lloyd's Rep 667 (QB): dictum at 673 applied

Smith v Accident Insurance Co [1870] LR 5 Ex 302: referred to.

Statutes Considered

Statutes H

The Short-Term Insurance Act 53 of 1998, ss 53(1)(a) and (b): see Juta's Statutes of South Africa 2009/10 vol 2 at 1-787.

Case Information

Appeal against a decision of a single judge in the same division. The facts appear from the reasons given for the judgment.

I J van Rooyen for the appellant.

BP Geach SC for the respondent.

Cur adv vult.

J Postea (October 25).

2011 (1) SA p237

Judgment

CJ Claassen J: A

[1] This is an appeal against a judgment handed down by Mathopo J in this court on 28 October 2009. What is surprising is that the record does not disclose whether leave to appeal was granted either by the court a quo or the Supreme Court of Appeal. It will be assumed that appropriate leave to appeal was obtained, until the contrary is established. B

[2] At the outset of the hearing of this appeal condonation for the late filing of the appellant's heads of argument was granted, without opposition from the respondent.

[3] This case concerns a claim for indemnification by an insured in terms C of an insurance policy that was repudiated by the insurer. The insured is the appellant and the insurer is the respondent. The case started out as an application launched by the appellant against the respondent for an order to indemnify the appellant for damages suffered, together with an order for costs on an attorney and client scale. This matter came before Lamont J, who referred the matter to trial due to various disputes which D could not be resolved on the papers. Lamont J ordered the appellant to file a declaration, after which normal pleadings followed. The matter ultimately came before Mathopo J on trial.

[4] Mathopo J held that the appellant had failed to disclose material E information, which entitled the respondent to void the policy, as a result whereof the respondent's repudiation of liability was upheld and the appellant's action dismissed with costs. It is against this order that the appellant now appeals. For the sake of convenience the parties will be referred to as they were known in the trial before Mathopo J, ie the appellant was the plaintiff and the respondent was the defendant. F

Background facts

[5] Initially the plaintiff was comprehensively insured by SA Eagle Insurance Co against any damage to his motor vehicle. His portfolio with SA Eagle was taken over by the defendant during 2003. While still G insured by SA Eagle the plaintiff was involved in two motor-vehicle collisions, one during 1994, for which he was charged but acquitted, and one during 1997, for which no prosecution ensued due to a nolle prosequi. [1]

[6] The insurance policy between the plaintiff and the defendant took H effect on 1 November 2003. [2] The annual anniversary date of this policy was 31 October 2004...