Marine and Trade Insurance Co Ltd v Van Heerden, NO

• Jurisdiction: South Africa

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

1977 (3) SA p553

Citation	1977 (3) SA 553 (A)
Court	Appellate Division
Judge	Holmes JA, Jansen JA, Rabie JA, De Villiers JA and Kotzé JA
Heard	May 10, 1977
Judgment	May 23, 1977

Flynote : Sleutelwoorde D

Insurance — Motor vehicle insurance policy — Condition in event of an accident or breakdown — Vehicle not to be driven before E necessary repairs effected — "Necessary repairs" — Meaning of in condition — Sufficient ambiguity in such phrase to bring into play against the insurer the rule of construction verba chartarum fortius accipiuntur contra proferentem — Insurer failing to discharge onus of establishing that makeshift repairs effected after a "breakdown" insufficient to enable vehicle to proceed safely — F Question whether an onus on insurer to prove a causal connection between failure to perform necessary repairs and any extension of the damage or, further damage, left open.

Maxims — Verba chartarum fortius accipiuntur contra proferentem — Scope of.

Headnote : Kopnota

Condition 6 of a motor vehicle insurance policy read: "The G insured shall take all reasonable steps to safeguard any vehicle described in the schedule hereto from loss or damage and to maintain it in efficient condition and (in terms of the Road Traffic Ordinances and regulations promulgated thereunder at the place where the insured vehicle is registered at the time the loss or damage in respect whereof a claim is made under the policy occurred) in roadworthy condition. The company shall have at all times free and full access to examine such H vehicle or any part thereof or any driver or employee of the insured. In the event of any accident or breakdown such vehicle shall not be left unattended without proper precautions being taken to prevent further damage or loss and if such vehicle be driven before the necessary repairs are effected any extension of the damage or further damage to such vehicle shall be entirely at the insured's expense." The insured had claimed an indemnity in respect of damage to a mechanical horse insured thereunder, but the insurer had sought to rely on this condition. The facts were that, shortly before midnight, when towing a trailer, the tread of a tyre on the horse had come off, breaking the air brake booster, with the result that air could escape from the pneumatic braking system and the brakes on all wheels had automatically locked, rendering the horse

1977 (3) SA p554

and trailer immobile. In order to make the vehicle mobile again the driver had plugged the hoses to that wheel and stopped the leak. Pressure had then built up and the remaining brakes had functioned normally again. Later, at or near the top of a A mountain pass, the driver had missed his third gear. The vehicle had run downhill and gone out of control. When the driver braked heavily on the third bend thereafter the vehicle overturned, and the horse had been damaged. The insured had sued the insurer for the amount of the damages. It had been common cause that there had been a "breakdown" within the meaning of the condition. The trial Court had held that the insurer's refusal to indemnity the insured had not been justified by the final sentence of condition 6 inasmuch as it required a causal connection between the failure to repair the original damage and the turning over of the vehicle which had led to the damage, and that such causal connection had not been B established. In an appeal, the Court had regard to the fact that the undisputed evidence established that the defective tyre had been replaced, the air hose plugged, the air leak eliminated and all the brakes save a hand and foot brake restored to normal function before the vehicle had been driven, and proceeded to enquire whether these operations constituted "necessary repairs" in terms of the final sentence of condition C 6 of the policy.

Held, that the provision in clause 9 of the policy that due observance of condition 6 was a condition precedent to any liability of the insurer did not render it a suspensive condition: the status of such a condition in a policy of insurance was that of a term in the policy proof of the breach of which rested on the insurer.

Held, further, that there was sufficient ambiguity in the phrase "necessary repairs" to bring into play against the insurer the rule of construction verba chartarum fortius D accipiuntur contra proferentem.

Held, further, regard being had to the wording of the ultimate sentence of condition 6 and the intention of the parties as derived from the policy as a whole, that the phrase necessary repairs", in relation to a breakdown, should be interpreted as meaning repairs immediately required to eliminate the cause of the breakdown and to enable the vehicle to be driven onward E reasonably safe from extended or further damage".

Held, further, as to whether the operations, referred to as of a makeshift nature, made by the driver before he had proceeded on his way fell within the scope of the phrase necessary repairs" as so construed, that these operations certainly had eliminated the cause of the breakdown: the air leak had been stopped, pressure built up, the function of all the brakes except the damaged ones on the rear bogie had been restored, the spare tyre had been fitted and the vehicle had been made mobile again, and the question was whether the vehicle could be driven on in reasonable safety, as to which there had been a F conflict of expert opinion.

Held, further, as there appeared to be no cause for doubting the qualification or reliability of either witness in respect of the opinions expressed by them, that it was quite impossible for the Court to hold that the insurer had discharged the onus of proving on a preponderance of probability that the operations which had been performed had been insufficient to enable the vehicle to be driven safely, especially in view of the fact that the vehicle had been conveying not nearly a full load.

Held, further, that, necessary repairs having been effected, the requirement of the ultimate sentence of condition 6 had G been fulfilled.

The question whether the insurer bore an onus to prove a causal connection between a failure to perform necessary repairs and any extension of the damage or any further damage, left open.

Schoeman t/a Billy's Garage v Marine and Trade Insurance Co. Ltd., 1976 (3) SA 824 (W), confirmed, but for different reasons. H

Case Information

Appeal from a decision in the Witwatersrand Local Division (MCEWAN, J.). The facts appear from the judgment of KOTZÉ, J.A., read with that of MCEWAN, J., in the Court a quo.

J. H. Coetzee, for the appellant: The onus to establish a breach of clause 6 (c) was on the appellant: see Resisto Dairy v Auto Protection Insurance Co. Ltd., 1963 (1) SA at 643 - 45. The provisions of the clause are to be restrictively interpreted. See Auto Protection Insurance Co. Ltd. v.

1977 (3) SA p555

Hanmer-Strudwick, 1964 (1) SA at pp. 354 - 356. Clauses like clause 6 in the policy have been described as operating to restrict the risk undertaken by an insurance company. Clause 6 (a) has been considered in numerous South African cases and in England and it has been consistently held that, once the insured delegates his duty to maintain the vehicle to a reputable or a responsible person and that servant is negligent, it cannot be held against the insured. However, the inefficient condition of the vehicle may not be causally connected with the damage for which the indemnity is sought. All the Court has to do is to determine whether an objective breach of condition 6 took place. See Conn v Westminster Motor B Insurance Association, (1966) 1 L.L.R.R. 407 (C.A.). As far as clause 6 (c) is concerned, the same principles apply, namely, that it is unnecessary to decide what was in fact the cause of the accident, or whether the accident was causally related to the original breakdown. The Judge's view that the meaning of the words "further damage" in the context of the C provision of the policy is ambiguous is wrong. The ordinary and literal meaning of these words is "additional damage" and it seems that neither the collocation of these words, nor the context render them capable of meaning that there should be a causal connection between the failure to repair the original damage and the "further damage". The same expression "further damage" appears earlier in clause 6 (c) of the policy and the D terms are repeated for easy reference. It cannot be contended that the words "further damage" as used in the context of the above quoted terms of the condition are affected with any...