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

• Jurisdiction: South Africa

Van Zyl NO v Kiln Non-Marine Syndicate NO 510 of Lloyds of London
2003 (2) SA 440 (SCA)

2003 (2) SA p440

Citation	2003 (2) SA 440 (SCA)
Case No	216/2001
Court	Supreme Court of Appeal
Judge	Nienaber JA, Schutz JA, Cameron JA, Brand JA and Heher AJA
Heard	August 30, 2002
Judgment	September 26, 2002
Counsel	J G Bergenthuin for the appellant.; T Plewman for the respondent.

Flynote : Sleutelwoorde B

Insurance — Liability of insurer — Liability exclusion clause — Accidental death and disability policy providing cover in cases of 'accidental bodily injury resulting in death or disablement' — One of exceptions to liability under policy being 'wilful exposure to danger' — Deceased killed when travelling alone from party 110 km from home late at C night — Blood/alcohol content at time of death 0,19 gram per 100 ml — Issue being whether deceased dying in 'accident' in terms of policy and, if so, whether insurer nevertheless exempted from liability because deceased's conduct falling within exception — Court reiterating rule that any provision in insurance policies purporting to place limitation on D clearly expressed obligation to indemnify to be restrictively interpreted, as insurer having duty to make clear what particular risks it wished to exclude — In casu most plausible inference to be drawn as to cause of crash being that deceased had dozed off as result of alcohol consumption and late E hour — Deceased having died in 'accident' in terms of policy, but had wilfully exposed himself to risk so that insurer establishing exception and thus not liable in terms of policy.

Headnote : Kopnota

The appellant sought to recover benefits allegedly payable under a life insurance policy over the life of her deceased husband (the F deceased) who died in a car crash when his car left the road when he was travelling home alone late at night from a party 110 km away from his home. While at the party the deceased drank brandy. At the time of his death he had a blood alcohol concentration of 0,19mg/100ml which, in a man of the deceased's size and weight, translated into an intake of at least 400 ml of brandy. Before leaving he ate a meal. He was G described as appearing to be normal when he left for home. The car rolled and the deceased was found dead some 25 metres away. The road was tarred and was dry at the time. For all practical purposes it was straight. There was no sign of anything extraneous having caused the car to leave the road. There were no potholes or visible obstructions. H

The insurance policy provided cover in cases of 'accidental bodily injury resulting in death or disablement'. The term 'accident' was defined in the policy to mean 'a sudden and fortuitous 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' meant 'death or injury caused by accidental means and independent I of any other specified in the policy schedule'. Listed among the exceptions to liability under the policy was 'Wilful exposure to danger (except in an attempt to save human life). Intentional self-inflicted injury, suicide or such an attempt.' The issue was whether, in terms of the policy, the deceased had died in an 'accident' and whether, if so, the insurer was nevertheless exempted from liability because the deceased was guilty of J

2003 (2) SA p441

'wilful exposure to danger'. It was held in a High Court that the insurer was not liable to pay the benefits in terms of the policy to the appellant. In an appeal,

Held (per Schutz JA, Nienaber JA, Cameron JA, Brand JA and Heher AJA concurring), that the facts suggested that the most natural or plausible inference to be drawn was that the deceased had dozed off at the wheel as a result of his alcohol consumption and the late hour. (Paragraph [4] at 445E.) B

Held, further, that the ordinary rules relating to the interpretation of contracts had to be applied in construing a policy of insurance. A court had to endeavour to ascertain the intention of the parties. Any provision which purported to place a limitation upon a clearly expressed obligation to indemnify had to be restrictively interpreted; for it was the insurer's duty to make clear what particular risks it wished to exclude. In interpreting insurance C contracts, it was the duty of the insurer to make it clear what particular risks he wished to exclude. An insurance policy had to be liberally construed in favour of the insured so as not to defeat without a plain necessity his claim to an indemnity which, in making the insurance, it was his object to secure. (Paragraph [6] at 445H - 446D/E, paraphrased.)

Held, further, that the ordinary rule, namely that the insured had to prove himself to fall within the primary risk insured D against, while the onus of proving the exception rested on the insurer, applied in the present case. (Paragraphs [7] and [8] at 446F - F/G and 447A.)

Held, further, that the first question was whether the appellant had proved an 'accident'. Whether there had been an accident in terms of the policy was a matter of law, not of medical opinion. The popular and ordinary sense of the word 'accident' E denoted 'an unlooked-for mishap or an untoward event which was not expected or designed'. An accident was therefore an occurrence or event of a fortuitous nature. The very essence of an accident was that its occurrence was not intended by its victim. The fact that the insured had been negligent (as the deceased undoubtedly had been) did not in itself prevent the Court from holding the circumstance to constitute an accident. (Paragraphs [11], [15] and [16] at 447H F and 449E/F - G/H.)

Held, further, that the appellant had proved that the deceased had been killed in an accident in terms of the policy. (Paragraph [17] at 449H.)

Held, further, that the next question was whether the insurer had proved wilful disregard of danger, ie whether, when the deceased had driven as he did, he had wilfully courted danger. (Paragraph [18] at 449I/J - J.) G

Held, further (per Schutz JA, Cameron JA and Heher AJA concurring; Brand JA and Nienaber JA dissenting) that the two dictionary meanings of 'wilful' which could have application were: (1) '(a)sserting or disposed to assert one's own will against persuasion, instruction, or command; governed by will without regard to reason; obstinately self-willed or perverse'; (2) (d)one on purpose or wittingly; purposed, deliberate, intentional. ((C)hiefly, now always, in a bad sense, of a blameworthy action; H freq implying "perverse, obstinate")'. (Paragraph [19] at 450A/B - C/D.)

Held, further, that in casu the first dictionary meaning of the word 'wilful' was intended. Not only intentional action but also refusal to heed warnings or the experience of others would be included. It was, furthermore, quite to be expected that an insurer would not intend to extend cover to one who, out of perversity, I would not hear. Nor would an insured at the time of contracting be likely to be heard to say that he was to be insured against his own perversity. (Paragraph [22] at 450F - H, paraphrased.)

Held, further (per Heher AJA, Schutz JA and Cameron JA concurring; Brand JA and Nienaber JA dissenting), that to fall within the exception, the exposure had to be to a danger that was not one faced by the insured going about J

2003 (2) SA p442

day-to-day business of life in a reasonable manner. A person who drove his vehicle at a high speed on A a busy road exposed himself to danger, so did one who crossed such a road against the traffic lights; both acted unreasonably. But the exposure to danger had to be wilful before the cover was excluded. What the parties intended was that the insured had to enter upon the relevant act or omission appreciating that his conduct (i) was unreasonable, and (ii) would lay him open to the risk of death or disablement. The enquiry was about the insured's subjective state of B mind, but, like all such enquiries, his own utterances could be tested against the objective facts or, in the absence of such utterances, the objective facts alone could be analysed to arrive at the most probable inference as to what passed through the insured's mind before and during the conduct that was in question. (Paragraphs [46] and [47] at 457G/H - 458B.) C

Held, further (per Schutz JA, Heher AJA and Cameron JA concurring; Brand JA and Nienaber JA dissenting) that besides the fact that the deceased had drunk a lot on the night of his death, he had gone to the party knowing that he was going to drive back for 110 km alone and in the dark at the end of a long day and after drinking alcohol. It was impossible to believe that he did not have those facts in mind as he took successive drinks. Nor was it possible D to believe that the deceased had not been consciously aware that driving after taking many drinks posed real dangers. It could not be accepted that a man with experience of life did not have a broad appreciation of the risk that he was taking, however unrefined his knowledge was. Even if he were a man who could 'hold his drink' (and there was evidence that he could) he must have known that he was taking a risk by drinking so much and then driving, particularly after the E extended publicity that had been given to the perils of drinking and driving in the last few decades. In consequence even the most benevolent of interpretations of the exception, including an acceptance of the second sense of 'wilful', could not avoid the facts and the inference to be drawn from them as by far the most probable. (Paragraph [24] at 450J - 451E.) F

Held, further, on the facts, that, even if the second, narrower sense were the appropriate one, the conduct of the deceased had been 'wilful'...