Farr v Mutual & Federal Insurance Co Ltd

• Jurisdiction: South Africa

Farr v Mutual & Federal Insurance Co Ltd
2000 (3) SA 684 (C)

2000 (3) SA p684

Citation	2000 (3) SA 684 (C)
Case No	2700/99
Court	Cape Provincial Division
Judge	Louw J
Heard	September 14, 1999
Judgment	October 11, 1999
Counsel	C A Nel for the applicant.; I J Muller for the respondent.

Flynote : Sleutelwoorde

Insurance — Liability of insurer — Liability exclusion clause — Motor B insurance policy excluding liability for bodily injury to 'member of policy holder's family normally resident with him' — Purpose of exclusion to restrict liability by excluding category of persons most likely to travel in motor vehicle with insured — Functional approach, by examining what family does rather than what family is, to be C adopted — Partner with whom insured sharing home and with whom maintaining unbroken and intimate same-sex relationship for 10 years held to be member of insured's family within meaning of exclusion.

Headnote : Kopnota

A motor insurance policy excluded liability by the insurer for D bodily injury to 'a member of the policy holder's family normally resident with him'. In interpreting the exlusion clause the Court held that, having regard to the purposes of the exclusion clause, namely to restrict the potential liability of the insurer by excluding the category of persons more likely to travel in his motor vehicle with the insured, a functional approach (by examining what a family did rather E than what a family was) had to be adopted. (At 689I/J-690A/B.) On this approach the applicant's partner, with whom the applicant had shared his home and with whom he had maintained an unbroken and intimate same-sex relationship for the 10 years preceding the accident in which the applicant's partner had been injured, was held to be a member of the applicant's family within the meaning of the exclusion. (At 690D/E.) Such an interpretation was held to accord with the spirit, purport and objects of chap 3, and in particular s 8, of the interim Constitution F (Constitution of the Republic of South Africa Act 200 of 1993) and with the provisions of s 9, read with ss 8 and 39(2) of the Constitution of the Republic of South Africa Act 108 of 1996. (At 690F/G-H.)

The dictum in Fitzpatrick v Sterling Housing Association Ltd [1997] 4 All ER 991 (CA) at 1023c - e ([1998] 2 WLR 225 at 258D - E) applied.

Cases Considered

Annotations

Reported cases

Dyson Holdings Ltd v Fox [1975] 3 All ER 1030 (CA): approved

Fitzpatrick v Sterling Housing Association Ltd [1997] 4 All ER 991 (CA) ([1998] 2 WLR 225): dictum at 1023c - e (All ER) and 258B - E (WLR) applied H

Gammans v Ekins [1950] 2 All ER 140 (CA): not followed

Incorporated General Insurances Ltd v Reinecke 1976 (1) SA 591 (A): compared

Langemaat v Minister of Safety and Security and Others 1998 (3) SA 312 (T): compared and applied

National Coalition for Gay and Lesbian I Equality and Others v Minister of Home Affairs and Others 1999 (3) SA 173 (C) (1999 (3) BCLR 280): compared and applied.

Statutes Considered

Statutes

The Constitution of the Republic of South Africa Act 200 of 1993, chap 3, ss 8, 35(3): see Juta's Statutes of South Africa 1996 vol 5 at 1-134 - 1-137 J

2000 (3) SA p685

The Constitution of the Republic of South Africa Act A 108 of 1996, ss 8, 9 and 39(2): see Juta's Statutes of South Africa 1999 vol 5 at 1-148, 1-152.

Case Information

Application for a declarator under a motor vehicle insurance policy. The facts appear from the reasons for judgment.

C A Nel for the applicant.

I J Muller for the respondent. B

Cur adv vult.

Postea (October 11).

Judgment

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

2000 (3) SA p686

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...