Guardian National Insurance Co Ltd v Weyers

• Jurisdiction: South Africa

Guardian National Insurance Co Ltd v Weyers
1988 (1) SA 255 (A)

1988 (1) SA p255

Citation	1988 (1) SA 255 (A)
Court	Appellate Division
Judge	Rabie ACJ, Corbett JA, Botha JA, Nestadt JA and Boshoff AJA
Heard	August 17, 1987
Judgment	September 29, 1987

Flynote : Sleutelwoorde F

Insurance — Compulsory Motor Vehicle Insurance Act 56 of 1972 — Claim under prescribed — Application for relief in terms of s 24(2)(a)(i) — 'Special circumstances' as required by s 24(2)(a)(ii) — What G constitutes — Central requirement for section to operate is that failure to serve MVA 13 or summons must not be due to culpa or blameworthy conduct of third party or person instructed to act on his behalf — Where an attorney employed, a higher standard required than a lay person — Incorrect information furnished to respondent's attorney as expired MVA sticker displayed on windscreen and not current token — H Police report giving wrong information — Attorney sending MVA 13 form to S company on day before two-year prescriptive period expired — Appellant, and not the S company, the current insurer — Court a quo finding this constituted special circumstances as envisaged by the I Act — Reversed on appeal — In not checking veracity of report and sending MVA 13 when no more time left if information wrong, attorney taking unwarranted risk — Attorney negligent and special circumstances not established.

Headnote : Kopnota

The central requirement for s 24(1)(a) of the Compulsory Motor Vehicle Insurance Act 56 of 1972 to operate is that the failure to serve the MVA J 13 form (or summons) must

1988 (1) SA p256

A not have been due to the culpable or blameworthy ('verwytbare') conduct of the third party or the person he instructed to act on his behalf. In other words he must not have been negligent (in the delictual sense). This means, where the third party acts himself, that he observed the degree of care which a reasonable man (diligens paterfamilias ) would have observed in the circumstances. Where an attorney is employed, the issue is whether in carrying out his mandate he acted with the care of a reasonable prudent practitioner. In the latter case a higher standard B will be required than in the former. More is reasonably to be expected of a skilled professional than an untrained layman. The test is therefore not a uniform one. This may seem strange but it is an inevitable consequence of the section, in effect, providing for the yardstick of reasonableness to be applied to persons possessing different qualifications and skills. It follows that in a given case, whether there has been negligence might depend on whether the third party was represented or not. In either event, however, the question of what ought to have been foreseen as a reasonable possibility necessarily C arises; for the answer to it determines whether and, if so, what precautions need to have been taken.

The respondent had been injured in a collision on 5 November 1983. A policeman had taken details of the third party token displayed on the windscreen of the other car involved in the collision indicating that the S company was the insurer. The attorney for the respondent sent an MVA 13 form to the S company on 4 November 1985, the day before which D the two-year prescriptive period expired. The information on the police report was, however, incorrect as appellant was the current insurer and not the S company, the insurer of the previous year. The claim had prescribed and respondent's attorney requested appellant to waive its right to rely on prescription. It refused. A Provincial Division had accepted that the furnishing of the incorrect information by the policeman had constituted 'special circumstances' in terms of s 24(2)(a) (ii) of Act 56 of 1972. In an appeal,

E Held (per Nestadt JA, Rabie ACJ, Corbett JA and Botha JA concurring; Boshoff AJA dissenting), that the attorney had culpably erred in taking what the police had told him as the last word on the subject as to who the authorised insurer was: he had placed too much confidence in what was essentially a hearsay report.

Held, further, that in not checking the veracity of the report and in waiting until the last day before serving the MVA 13 form on the S company (so that if it turned out not to be the insurer there was no F time to serve the MVA 13 form on the correct company) he had taken a chance and had run an unwarranted risk.

Held, further, that the attorney had been negligent, that this was the cause of the MVA 13 form not being timeously served on the appellant and that respondent had not satisfied the requirements of s 24(2)(a) (i) of the Act.

Held, accordingly, that the appeal should be allowed with costs.

The decision in the Transvaal Provincial Division in Weyers v Guardian G National Insurance Co Ltd reversed.

Case Information

Appeal from a decision in the Transvaal Provincial Division (Curlewis J). The facts appear from the judgment of Nestadt JA.

F J Bashall for the appellant: The expression 'special circumstances' in s 24(2)(a) (i) of Act 56 of 1972 as used in the Act prior to the H substitution was not defined but it had been interpreted by the Courts in cases such as the decision of this Court in Webster and Another v Santam Insurance Co Ltd 1977 (2) SA 874 (A) at 883G - H where it was held that 'neglect by an attorney may frequently be a special circumstance on its own vis-à-vis his client'. By s 1(c) of Act 69 of 1978 the following definition was included in the definitions contained in s 1(1) of the I Act: ' "special circumstances" does not include any neglect, omission or ignorance'. The manifest intention of that definition was to remove from the ambit of 'special circumstances' the neglect, omission or ignorance of, inter alia, a claimant's attorney. Coetzee v Santam Versekeringsmaatskappy Bpk 1985 (1) SA 389 (A) at 394E. The respondent correctly assumed the onus of establishing the existence of special J circumstances. It was incumbent upon

1988 (1) SA p257

A the respondent to show that there was a causal connection between the special circumstances and the non-compliance with the provisions of s 25(1) of the Act. In the event of the negligence of the attorney in casu being the effective reason or direct and immediate or direct cause of the failure then the application ought not to have succeeded. Coetzee v Santam Versekeringsmaatskappy Bpk (supra at 395B - E). It is required B that the special circumstances be such that the attorney in casu could not reasonably have been expected to comply with the provisions prior to the date upon which the claim became prescribed. It is therefore incumbent that the conduct of the attorney in question be critically examined in the light of the criterion of reasonableness. Federated Employers' Insurance Co Ltd v Magubane 1981 (2) SA 710 (A) at 717D. To C rank as special circumstances the circumstances must be unusual or unexpected. Webster and Another v Santam Insurance Co Ltd (supra at 882H); Federated Employers' Insurance Co Ltd v Magubane (supra at 717C). See, too, Coetzee v Santam Versekeringsmaatskappy Bpk (supra at 398F); Mutual & Federal Insurance Co Ltd v Job 1987 (1) SA 63 (C) at 66D. D Crisply put, the question is whether the actions of the attorney entrusted by the respondent with the prosecution of his claim were those of an attorney who conducts his affairs with normal prudence. National Employers General Insurance Co Ltd v Masilo 1986 (1) SA 265 (T) at 268I. The affixing of an incorrect token to a motor vehicle is not unusual or E unexpected. Despite the respondent's contentions to the contrary the real possibility exists that an old token may not have been replaced. (One or more old tokens may still have appeared together with a current token.) Stolen or exchanged tokens may have been displayed. The crucial question is, however, whether the attorney was entitled to content himself with reliance upon the information from the police relating to F the identity of the defendant in the contemplated proceedings. The respondent relied also on the information that the attorney received from the respondent's wife. Whilst it was not disputed that he received this information it was stated that the said attorney would hardly be entitled to rely thereon for corroboration unless he enquired as to its source and that he had apparently not done so. During the entire period G until 4 November 1985 the said attorney made no attempt to confirm with Santam that it was indeed the insurer of the vehicle in terms of the Act. This could have been undertaken timeously and the enquiry should have been made for the sound reasons given. It is indeed conceded for the respondent that it frequently happens that attorneys request a copy of the insurance declaration from the insurance company although it is H stated that just as frequently MVA forms are served straight-forwardly on the indicated company. It appears that insofar as the appellant is concerned, an attorney usually requests a copy of the insurance declaration. The absence of a statutory duty is not an answer to a sound precaution of practice which could in any event be reinforced by the I provisions of s 20(2) of the Act against the owner of the vehicle in the unlikely event of the insurer declining to furnish the information. To content himself with reliance upon the police information and the apparently undetermined source of the respondent's wife was not in the circumstances reasonable. There are sound reasons for instituting such J enquiries. The Judge a quo erred in finding that it was reasonable to

1988 (1) SA p258

A rely upon the information emanating from the police. It is precisely because of the fact that it is not unusual or unexpected that an incorrect disc is displayed or incorrect information conveyed by the police that a prudent and reasonable...