Schoeman t/a Billy's Garage v Marine and Trade Insurance Co Ltd

• Jurisdiction: South Africa
• Judge: McEwan J
• Judgment Date: 10 June 1976
• Court: Witwatersrand Local Division

McEwan, J.:

The plaintiff claims an indemnity in respect of D damage to an International mechanical horse, registered number TDK 10340, which was insured by the defendant at the relevant time against loss or damage.

The main facts in the case have been agreed as a result of admissions in the pleadings and agreements reached at the pre-trial conference and subsequently. On 21 January 1975 the E horse set off (presumably from some place on the Witwatersrand) with a semi-trailer attached to it. The trailer was loaded with cut timber. The mass did not represent a full load for the combination. It travelled at night. The load was destined for Ulundi in Zululand. The horse had two front tyres and two axles towards the back, each of which had two pairs of tyres, making ten tyres in all. The trailer had two axles with F two tyres at each end, making eight tyres in all.

About five kilometres before the vehicle reached Vryheid and shortly before midnight, the tread of the inner tyre of the right hand wheel of the mid-axle of the horse came off. In doing so it broke the air brake booster on that side off its bracket. The booster was presumably lost. It was not shown to any of the witnesses who examined the vehicle after the G accident to which the claim relates.

Photographs produced at the trial show that the base plate of the booster remained attached to its bracket, but the bracket was badly bent. The evidence was that a new or second-hand booster could not be fitted until the bracket had been straightened.

The effect of the booster being ripped off was that air could H escape from the brake system, which was a pneumatic system. The effect of the escape of the air was that the pressure required to keep the brake shoes free from the brake drums could not be maintained and the brakes on all wheels automatically locked. (I shall adopt the definition of 'wheel' given by Mr. Tompkins, the expert witness for the plaintiff. That means that there is a single wheel at the end of each axle regardless of the number of tyres on the wheels). There is a brake on each wheel of the horse and also on each wheel

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of the trailer. Two hoses convey the air to each brake, one operating from the foot brake and the other from the hand brake.

The result of the locking of the wheels was to make the vehicle immobile. In order to make it mobile again the driver plugged A the two air hoses leading to the broken booster with bolts. These were secured by wire fastened around the hose. The loose hoses were then secured to the centre brake pipe tee on that axle to prevent their fouling any portion of the mechanism. The plugging of the hoses stopped the air leak. Pressure was then built up, so that the remaining brakes would function normally again. The spare tyre was fitted in place of the defective tyre. The driver then proceeded on his way.

B About thirty miles beyond Vryheid the driver stopped to inspect the wheels. The spare tyre that had been fitted was deflated. The tyre was removed so that the horse was now running on seven instead of eight tyres on its rear bogey.

The next part of the journey was in mountainous country. Heavy C rain was experienced and near Babanango heavy mist was encountered. Between Babanango and Melmoth the vehicle had to traverse a mountain pass with many bends and steep gradients. According to the driver's report, as set out in the claim form, at or near the top of the gradient the driver missed his third gear. The truck ran away downhill. He negotiated two bends, but D failed to take the third bend because the truck was completely out of control. There were further bends ahead. When he braked heavily the vehicle overturned.

The horse was damaged. It was agreed that if the plaintiff is entitled to an indemnity, the amount of the indemnity should be R12 000.

In seeking to justify its refusal to pay the indemnity the defendant relies on condition 6 in the policy. That condition reads:

'6 (a)

E The 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 Ordinance and regulations promulgated thereunder at the place where the insured vehicle is registered at the time of the loss or damage in respect whereof a claim is made under the policy occurred) in roadworthy condition.

(b)

F The Company shall have at all times free and full access to examine such vehicles or any part thereof or any driver or employee of the insured.

(c)

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 own risk.'

G I have inserted the letters (a), (b) and (c) to facilitate reference to the three parts of the condition.

The first part of condition 9 reads:

'9.

The due observance and fulfilment of the conditions and endorsements of this policy shall be conditions precedent to any liability of the company to make any payment under the policy.'

H Notwithstanding the use of the words 'conditions precedent' it has been held that such conditions are terms of the policy (Resisto Dairy (Pty.) Ltd. v Auto Protection Insurance Co. Ltd., 1963 (1) SA 632 (AD) at p. 644D). If the defendant insurance company relies on a breach of such a term, the onus is upon it to establish the breach. (Ibid at p. 645A; see also Pereira v Marine and Trade Insurance Co. Ltd., 1975 (4) SA 745 (AD) at p. 752D and F).

Conditions similar to part (a) of condition 6 have been considered in

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many cases in this country and in England. I was informed that counsel were unaware of any case where a condition similar to part (c) has been considered, although the condition considered in the Remisto Dairy case, supra, included a similar sentence. (See p. 644C).

The defendant pleaded a breach of both part (a) and part (c) of the conditions. In argument, however, Mr. Coetzee, who appeared A ...