Eagle Star Insurance Co Ltd v Willey

• Jurisdiction: South Africa
• Judge: Centlivres CJ, Van Den Heever JA, De Beer JA, Reynolds JA and Hall JA
• Judgment Date: 24 November 1955
• Hearing Date: 11 November 1955
• Court: Appellate Division

Centlivres, C.J.:

The parties to this appeal entered into a motor-car policy whereunder the appellant (to which I shall refer as the insurer) E undertook to indemnify the insured (the respondent). Section II of the policy reads as follows:

'Liability to third parties.

The Company will indemnify the insured in the event of an accident caused by or through or in connection with any motor car described in the schedule hereto against all sums including claimant's costs and expenses which the insured shall become legally liable to pay in respect of

(i)

F Death of or bodily injury to any person not being a member of the insured's household but excluding death of or bodily injury to any person in the employment of the insured arising out of and in course of such employment.

(ii)

Damage to property other than property belonging to the insured or held in trust by or in the custody or control of the insured.

The Company will pay all costs and expenses incurred with its written consent.'

G During the currency of the policy a collision occurred between the insured car which was being driven by the insured and another car. A passenger in the insured's car was injured and she brought an action against the insured, claiming damages on the ground of negligence. The insurer refused to implement its undertaking to indemnify the insured. H The insured thereupon brought an action in the Cape Provincial Division against the insurer claiming a declaration that the insurer was liable to indemnify him in terms of the policy of insurance in respect of the action brought against him by the passenger. The insured in his declaration did not aver that the passenger was not a member of his household. The insurer, in a request for further particulars, asked whether the insured alleged that the passenger was not a member of his

Centlivres CJ

household. The insured refused to reply to that request on the ground that the allegation referred to therein was not relevant to the insured's cause of action. The insurer thereupon excepted to the insured's declaration as disclosing no cause of action. The Provincial Division dismissed the exception with costs and granted leave to appeal.

A The question to be decided in this appeal is whether it is incumbent upon the insured to aver in his declaration that the passenger whom I have mentioned was not a member of his household. The promise made by the insurer was to indemnify the insured against all sums etc. which the insured

B 'shall become legally liable to pay in respect of (1) death of or bodily injury to any person not being a member of the insured's household.'

Apart from decided cases dealing with certain types of insurance one would have thought that there would be no doubt that the insurer in the present case would have to frame his declaration in such a manner as to bring his claim within the four corners of the promise made to him: in C other words he would have to allege in the present case that the passenger in his car was not a member of his household. If the insured must make that allegation then the burden of proving that the passenger was not a member of his...