Van Zyl NO v Kiln Non-Marine Syndicate NO 510 of Lloyds of London

• Jurisdiction: South Africa
• Judge: Nienaber JA, Schutz JA, Cameron JA, Brand JA and Heher AJA
• Judgment Date: 26 September 2002
• Citation: 2003 (2) SA 440 (SCA)
• Docket Number: 216/2001
• Hearing Date: 30 August 2002
• Counsel: J G Bergenthuin for the appellant. T Plewman for the respondent.
• Court: Supreme Court of Appeal

Schutz JA: G

[1] The issue is whether in terms of an accidental death and disability policy the deceased died in an 'accident' and whether, if so, the insurer is nevertheless exempted from liability because the deceased was guilty of 'wilful exposure to danger'. H

[2] The appellant (applicant below) is Mrs Van Zyl, who brought an application for payment in terms of the policy as the executrix in the estate of her husband Mr Jacob van Zyl ('the deceased') who received fatal injuries in his car on 28 May 1997. (I refrain from saying that he was killed in a car accident, as that would be to pre-judge one of the issues in the case.) He was insured under the I policy mentioned, by the respondent, Kiln Non-Marine Syndicate No 510 of Lloyds of London ('the insurer'). Mrs Van Zyl's application was dismissed by Mynhardt J in the Transvaal Provincial Division, the Judge finding against her on both of the points in issue. She appeals with his leave. J

Schutz JA

[3] The deceased was a bank manager at Klerksdorp. On the night of his death he attended a party at Wolmaransstad, 110 kilometers away. A He had made no arrangements to sleep over or to take a lift back. He arrived at the party at about 20:00 and left after midnight, in his car. He was on his own. Whilst at the party he drank brandy. The concentration of alcohol in his bloodstream at the time of his death was 0,19 gram per 100 ml of blood. (The legal limit for driving is 0,05.) Before leaving he ate a meal. He was described as appearing B to be normal when he left for home.

[4] Early the next morning the wreck of his car was seen in the veld beside the road to Klerksdorp. The car had rolled and the deceased was found dead some 25 meters away. The road was tarred and was dry at the time. For all practical purposes it was straight. Skidmarks were C visible. All four wheels were on the wrong side of the road where the marks commenced. They then veered off the road to the right. There was no sign of anything extraneous having caused the car to leave the road. More particularly there were no potholes or visible obstructions. As it was the opinion of the forensic pathologist who deposed for the insurer, Dr Klepp, that the deceased could not have survived his brain D injuries for long, it may be taken that when he crashed the blood alcohol percentage was about 0,19. Although the cause of the crash may have been, say an animal straying onto the road or a car approaching on the wrong side, the facts suggest that the most natural, or plausible inference to be drawn (see Aswanestaal CC v South African Eagle Insurance Co Ltd 1992 (1) SA 662 (C) at 667J - 668A) is that the E deceased dozed off at the wheel as a result of his alcohol consumption and the late hour.

[5] The policy provides cover in cases of 'accidental bodily injury resulting in death or disablement'. The term 'accident' is defined to mean 'a sudden and fortuitous F event occasioned by visible, violent and external means which occurs at an identifiable time and resulting in bodily injury as defined, and accidental shall have a corresponding meaning'. 'Bodily injury' means 'death or injury caused by accidental means and independent of any other specified in the policy schedule'. Listed among the exceptions to liability under the policy is 'Wilful exposure to danger (except in an attempt to save human life). Intentional G self-inflicted injury, suicide or such an attempt.' (The emphases in this paragraph have been supplied by me.)

Interpretation H

[6] The main principles of interpretation of the policy applicable in this case are to be found in Fedgen Insurance Ltd v Leyds 1995 (3) SA 33 (A) at 38B - E:

'The ordinary rules relating to the interpretation of contracts must be applied in construing a policy of insurance. A court must therefore endeavour to ascertain the intention of the parties. Such I intention is, in the first instance, to be gathered from the language used which, if clear, must be given effect to. This involves giving the words used their plain, ordinary and popular meaning unless the context indicates otherwise (Scottish Union & National Insurance Co Ltd v Native Recruiting Corporation Ltd 1934 AD 458 at 464 - 5). Any provision which purports to place a limitation upon a clearly expressed obligation to indemnify J

Schutz JA

must be restrictively interpreted (Auto Protection Insurance Co Ltd v Hanmer-Strudwick 1964 (1) SA 349 (A) A at 354C - D); for it is the insurer's duty to make clear what particular risks it wishes to exclude (French Hairdressing Saloons Ltd v National Employers Mutual General Insurance Association Ltd 1931 AD 60 at 65; Auto Protection Insurance Co Ltd v Hanmer-Strudwick (supra at 354D - E)). A policy normally evidences the contract and an insured's obligation, and the extent to which an insurer's liability is limited, must be plainly spelt out. In the event of a real ambiguity the contra proferentem rule, B which requires a written document to be construed against the person who drew it up, would operate against Fedgen as drafter of the policy (Kliptown Clothing Industries (Pty) Ltd v Marine and Trade Insurance Co of SA Ltd 1961 (1) SA 103 (A) at 108C).'

See also the dictum quoted by King J in Barnard v Protea Assurance Co Ltd t/a Protea Assurance 1998 (3) SA 1063 (C) C at 1068B - C:

'Now it is an accepted principle in interpreting insurance contracts that it is the duty of the insurer to make it clear what particular risks he wishes to exclude. The principle is stated by May in the following terms: "No rule in the interpretation of a policy is more fully established, or more imperative or controlling, than that which declares that, in all cases, it must be liberally construed in favour of the insured so as not to D defeat without a plain necessity his claim to an indemnity which in making the insurance it was his object to secure."'

King J proceeded (at 1068D): E

'From this it would follow that if a term in a policy ("term" in the sense of designation) is capable of both a broader and narrower meaning it is that which is favourable to the insured, in other words to the upholding of the policy, which must be employed.'

Onus F

[7] There is a dispute as to the onus in regard to the exception (wilful exposure). The ordinary rule is that the insured must prove himself to fall within the primary risk insured against, whilst the onus is on the insurer to prove the application of an exception: Eagle Star Insurance Co Ltd v Willey 1956 (1) SA 330 (A) at 334A - 335F. But the insurer seeks to escape the incidence of G the ordinary rule by reliance on Aegis Insurance Co Ltd v Consani NO 1996 (4) SA 1 (A) at 6A - 9A and 14H - I. It is argued that the concepts 'accident' and 'wilful exposure to danger' are mutually exclusive, so that an accident cannot be established without at the same time excluding wilful conduct on the insured's part. The claimant H in discharging his onus has to negate a wilful cause, thereby attracting the insurer's onus onto himself. However, I think that the resort to Consani as an analogous case is misplaced. The issue there was whether the insured had died by accident or by suicide. The two concepts are indeed mutually exclusive. Death cannot be accidental (in the sense of an accident policy) if it comes by the insured's own hand. The case before us is different. The I exception is not 'wilful death' or 'wilful crashing', which would be antitheses of 'accident'. The adjective 'wilful' does not qualify death or crashing, but disregard of danger, which disregard might increase the chance of an accident happening but in no wise operates to exclude the possibility of there being an accident. J

Schutz JA

[8] For those reasons I am of the view that the ordinary rule does apply, so that the onus of proving the exception rests A on the insurer.

Authority

[9] The expressions 'accident' and 'wilful exposure to danger', and like expressions, are not newly subject to judicial scrutiny. The heads of argument are replete with cases, drawn from many B jurisdictions, explaining them. These cases are helpful, but, mindful of my readers, I shall not use them all. I heed the rebuke by Corinna, a poetess of Thebes, addressed to Pindar, for his overabundance of instances, 'Pindar, one should sow with the hand, not with the whole sack'. We may now proceed to the issues. C

Has Mrs Van Zyl proved an accident?

[10] Before answering this question it is necessary in order to understand the insurer's argument to have regard to the uncontroverted evidence of Dr Klepp. Speaking out of her expertise she describes the effects of alcohol on a driver. Alcohol is a central nervous system D depressant. The brain controls the various faculties which are required when driving a car. These faculties are adversely affected by the depression of the nervous system in various ways, including the following: Visual function is degraded, especially at night, causing tunnel vision. Information processing is impaired and slowed down, E seriously decreasing reaction times. Judgment is impaired and false confidence results. Behaviour becomes impulsive. Muscular responses are impaired and steering errors manifest themselves. Detailed studies which are regarded by the scientific community as accurate and reliable have shown that the degree of impairment is very great. Driving while having a blood alcohol concentration of 0,19 gram/100 ml has been F statistically and medically proven to be 50 times more likely to lead to an accident when compared with driving by a sober person.

[11] Dr Klepp then proceeds to express an opinion. It is that an 'accident' while driving with such a blood alcohol concentration cannot be said to be fortuitous; an 'accident' is indeed G the probable consequence of driving in that condition...