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[2012] ZAGPJHC 2
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Hypercheck (Pty) Ltd v Mutual & Federal Insurance Company Ltd (2010/2695) [2012] ZAGPJHC 2 (11 January 2012)
REPUBLIC OF SOUTH
AFRICA
SOUTH GAUTENG HIGH
COURT, JOHANNESBURG
CASE
NO: 2010/2695
In the matter between:
HYPERCHECK
(PTY) LTD
Plaintiff
And
MUTUAL
AND FEDERAL INSURANCE COMPANY LTD
Defendant
JUDGEMENT
MAYAT J:
INTRODUCTION
[1] The plaintiff
in this matter seeks indemnification from the defendant, an insurer,
in terms of an insurance agreement
between the parties in respect of
damages to a structure which formed part of a building on an
immovable property owned by the
plaintiff.
[2] By agreement
between the parties, the determination of the merits of the
plaintiff’s claim for indemnification and
the
quantum
of
the plaintiff’s claim were separated in terms of rule 33 (4) of
the Uniform Rules of Court. The proceedings before this
court were
accordingly limited to a determination of the defendant’s
liability to indemnify the plaintiff for specified damages
in terms
of an insurance policy.
To this end, the
court was called upon to interpret the provisions of the said policy
in the context of certain events. Specifically,
the court was called
upon to interpret the provisions of an exclusionary clause in terms
of the said policy which limited the defendant’s
liability to
the plaintiff.
PERTINENT BACKGROUND
[3]
Ex facie
the
pleadings and pursuant to an agreement between the parties, pertinent
facts and conclusions pertaining to the cause of the plaintiff’s
damages are not in dispute. The plaintiff adduced additional evidence
with respect to certain details on the basis of the testimony
of two
witnesses. The defendant, on the other hand, premised its case solely
upon the common cause facts, and accordingly closed
its case without
leading any evidence.
[4] In these
circumstances, it is common cause that the plaintiff is
the
owner of an immovable property situated at 132 Field (now Joe Slovo)
Street, Durban (“the property”). A building
on the
property traverses the corner of Joe Slovo and Bertha Mkhize Streets.
It is further common cause that during or about March
2009, the
plaintiff and the defendant concluded a written contract entitled the
Property Protect Gold Policy of insurance, in terms
of which the
plaintiff was indemnified against stipulated losses and damages inter
alia in relation to specified property, public
supply connections and
rentals. The said agreement is hereinafter referred to as “the
policy”. Whilst the policy extended
to certain broad categories
of loss and damages, including loss of rental on a limited basis, as
the name of the policy suggests,
the primary cover in terms of the
policy related to accidental physical loss or damages to specified
property.
[5] In these
circumstances, the plaintiff was indemnified in terms of the policy
against loss or damage to specified property
arising from defined
events. Specifically, as regards the property protected in terms of
the policy, it was provided that the policy
covered perils to:
“
the
buildings (constructed of brick, stone, concrete or metal on metal
framework and roofed with slate, tiles, metal, concrete or
asbestos
unless otherwise stated in the schedule) including landlords’
fixtures and fittings therein and thereon, plant equipment,
structures and other improvements of a permanent nature, walls
(except dam walls) gates, posts and fences (except hedges), brick,
tarred, concrete or paved roads, driveways, parking areas and paths,
fire extinguishing equipment, railway sidings, all the property
of
the insured, and if so stated in the schedule, tenants’
fixtures and fittings.”
Unless the context
otherwise indicates, the said buildings, including all the parts
specified above, are hereinafter referred to
individually and
collectively as “the insured property”. Thus, as stated
above, the insured property expressly includes
“
structures
and other improvements of a permanent nature”
.
[6] The policy
further provided under the heading “
ACCIDENTAL DAMAGE
EXTENSION”
that specified perils covered by the policy
extended to:
“
Accidental
physical loss or damage to the property insured by any cause not
excluded by exceptions 1 to 9 appearing below…”
Thus, the accidental
damage extension in terms of the policy excluded indemnification for
damages arising from contingencies specified
in 9 clauses. One such
clause (clause 6), excluded protection in terms of the policy for
loss or damage to property arising from:
“
Settlement
or bedding down, ground heave, collapse or cracking of structures or
the removal or weakening of support to any property
insured”
The stated exception is
hereinafter referred to as “exception 6”.
[7] It is not in
dispute that concrete awnings or cantilever slabs on the sides of the
building on the property constituted
architectural features at the
time when the said building was built. It is also not in dispute that
on the 1
st
of November 2009, one such concrete awning,
which was located on the side of the said building at the corner of
Joe Slovo and Bertha
Mkhize Streets, fell to the ground. The said
awning is hereinafter referred to as “the awning”.
[8] Pursuant to a
discussion between expert witnesses for both parties, the structural
features of the awning as well as the
cause of the collapse of the
awning were not in dispute. Thus, it was common cause in joint
minutes between the two experts that
the awning formed an integral
part of the insured property, and the experts agreed that the said
awning was a structure of a permanent
nature. It was also not in
dispute that the awning was continuously supported by the perimeter
beam of the first floor of the building.
Moreover, the outside edge
of the awning was also continuously supported by a perimeter beam.
The external ridge of the awning
was supported by a number of steel
plate hangers or metal fins at regularly spaced intervals, which were
attached to the top of
the external perimeter beam and to a metal
plate attached to the underside of the awning. The experts also
agreed that the said
metal plate formed an integral part of the
support structure of the awning.
[9] It was not in
dispute that prior to the collapse of the awning in November 2009,
five of the metal fins which were connected
to the metal plate
support under the awning had been cut away by someone. Whilst neither
expert had any direct knowledge of who
had cut away the said fins, it
was subsequently ascertained that two of these fins had been cut away
by a previous tenant of the
plaintiff, approximately one or two years
prior to the collapse of the awning in November 2009. It was also
ascertained that approximately
two months prior to the awning
collapsing in November 2009, three further fins had subsequently also
been cut away by another tenant
of the plaintiff, who operated a
Chicken Licken fast food outlet from leased premises on the property
at the corner of Joe Slovo
and Bertha Mkhize Streets. The said
premises were located beneath the awning, and the tenant who occupied
same subsequently informed
the plaintiff that three metal fins had
been removed by the tenant to enable the said tenant to affix signage
against the awning.
It appeared that after the three metal fins were
cut away by the said tenant, the awning was supported from the top by
two anchor
bolts for approximately two months. Eventually, as already
indicated, the awning came crashing down to the ground outside the
Chicken
Licken outlet on the 1
st
of November 2009.
[10] Whilst the
experts concerned recorded in their joint minutes that neither party
had direct knowledge of the cutting away
of the metal fins, it was
also recorded that a competent engineer would have been aware that
cutting away the said fins or hangers
would have increased the risk
of the awning collapsing. In these circumstances, the said experts
further agreed that cutting away
the steel plate resulted in the
removal and weakening of the support structure of the awning, which
in turn caused the collapse
of the awning.
[11] As already
indicated, the plaintiff also adduced more detailed evidence
pertaining to certain aspects which were common
cause at a general
level. Thus, Mr Raffi Aboobaker Abdoola testified on behalf of the
plaintiff that he was a director and shareholder
of the plaintiff,
which was a property owning company, leasing retail and shopping
premises to various tenants. The said tenants
included a tenant who
operated a Chicken Licken fast food outlet, referred to above, at
premises which were located at a corner
of the building on the
property. Abdoola confirmed during cross-examination that even though
the plaintiff had appointed managing
agents inter alia to maintain
the insured property and to collect rental, he also dealt with
aspects of maintenance himself. However,
he also stated in this
respect that he did not conduct any periodic inspections of the
property for the purposes of maintenance.
[12] It was
Abdoola’s further evidence that he was the duly authorised
representative of the plaintiff when the policy
between the parties
was concluded. To the extent that it is relevant in this context, he
indicated that whilst the plaintiff had
access to legal advice
pertaining to the terms and conditions of the policy, he appreciated
at the time that the said terms and
conditions were standard in these
circumstances.
[13] It was
Abdoola’s further evidence that on the Friday preceding Sunday
the 1
st
of November 2009 he had received a report of a
crackling noise from the awning. He went up to the first floor of the
building on
the property to investigate, accompanied by a maintenance
manager, and had examined the awning from the top. He indicated that
whilst he was not an engineer or a builder, he had assessed the
awning from a lay perspective at the time. He also testified that
he
did not consider the awning to pose a threat at the time. He further
stated that as he had only viewed the awning from the top,
he did not
notice any cracks on the underside of the awning at the time.
Thereafter, on Sunday the 1
st
of November 2009, he
received a telephone call at approximately midday from the tenant
operating the Chicken Licken, reporting
a problem with the awning. He
told the tenant to clear his patrons and immediately went to the
property. It was his evidence that
by the time he arrived at the
property, the awning had already fallen to the ground. The tenant’s
signage was also damaged
in the process.
[14] It was also
Abdoola’s evidence that prior to leasing premises for the
Chicken Licken outlet, the plaintiff had
leased the said premises to
another fast food outlet, named Captain Dorego. Both outlets had
arranged for signage above their premises,
over the awning. Abdoola
stated in this regard that he subsequently found out that both the
tenants had cut the metal fins supporting
the awning to place their
signage against the awning. Specifically, he found out that the
tenant who operated the Chicken Licken
outlet had removed a number of
fins approximately one month prior to the 1
st
of November
2009. Thus, Abdoola confirmed from certain photographs shown to him,
apparently taken by a tenant approximately one
month prior to the 1
st
of November 2009 that the metal fins supporting the awning had indeed
been cut. However, he also confirmed in this respect that
no
permission had been sought from the plaintiff by the tenants
concerned to cut the said metal fins.
[15] Mr Gordon
Fleming testified on behalf of the plaintiff that he was a consulting
civil and structural engineer. He confirmed
that he had a telephonic
conference with his counterpart, who had been appointed by the
defendant and that pursuant to such conference,
their agreement on
certain aspects of this matter was recorded in a joint minute
prepared by them for these proceedings. He further
confirmed, as
reflected in the said joint minute, that the awning in this matter
failed as a result of the steel fins having been
cut off by someone.
[16] Fleming
indicated in his testimony that the awning was a common architectural
feature or design in buildings constructed
in the 1980s. As reflected
in the joint minute, he also confirmed in his testimony that the
awning as well the steel hangers (including
the steel plate under the
awning) formed integral parts of the building constituting the
insured property. He further confirmed
that the steel hangers or fins
as well as the metal plate were necessary to support the awning. As
such, he stated during cross-examination
that cutting the steel plate
had resulted in a “
significant collapse”
of the
awning. He also indicated during cross-examination that it might not
have been obvious to a lay person that the structural
integrity of
parts of the building on the property might have been compromised as
a result of the said fins being cut.
[17] Against this
background, it was not in dispute that the plaintiff lodged a claim
with the defendant for indemnification
in terms of the policy for
loss or damages sustained by the plaintiff as a result of the awning
falling. The defendant repudiated
liability for the plaintiff's claim
in this respect on the basis of the provisions of exception 6 of the
policy.
THE ISSUE
[18] In these
circumstances, it was averred on behalf of the plaintiff that none of
the eventualities stipulated in exception
6 applied to the present
case. It was averred on behalf of the defendant, on the other
hand, that indemnification for the
collapsed awning was excluded in
terms of the provisions of exception 6. The primary dispute between
the parties accordingly relates
to whether or not the cause of the
plaintiff’s loss or damages fell within the ambit of exception
6.
LEGAL FRAMEWORK
[19]
Against the background of the common cause facts in this matter, the
legal submissions by counsel were premised upon
an interpretation of
the provisions of the policy, particularly, exception 6. In view of
the fact that there were no factual disputes
in the context of the
stipulated exception, the onus of proof was not an issue in these
proceedings.
[1]
[20] The general
principles and rules relating to the interpretation of contracts,
which are relevant in the sphere of insurance
contracts, can be
summarised as follows:
i)
As
with all other contracts, it is well-established that if the language
is clear, the court must give effect to the language which
the
parties have themselves used in the insurance contract. Thus, the
words in an insurance contract must be given their plain,
ordinary,
popular and grammatical meaning, unless this would result in some
absurdity, or it is evident from the context that the
parties
intended the words in question to bear a different meaning.
[2]
There
is no room for a more reasonable interpretation than the plain
meaning of the words themselves convey, particularly so if
there is
no ambiguity.
ii)
In
order to establish the intention of the parties, the court must look
at the insurance contract as a whole rather than at isolated
expressions, bearing in mind the language of the policy.
[3]
iii)
As stated in the cases of
Kliptown
Clothing Industries (Pty) Ltd v Marine and Trade Insurance
Co of SA Ltd
1961 (1) SA 103
(AD) at 108C
and
Fedgen Insurance Ltd v Leyds
1995
(3) SA 33
(AD) at 38 D-E, if the meaning of a word or clause in an
insurance contract is not clear, or the word or clause is ambiguous,
the
verba fortuis accipiuntur contra
proferentem
rule is applicable. This
rule requires a written document to be construed against the person
who drafted it. Thus, as stated by
Smallberger JA in the
Fedgen
case
,
at
38 B-E:
“
Any
provision which purports to place a limitation upon a clearly
expressed obligation to indemnify must be restrictively
interpreted…for
it is the insurer’s duty to make clear
what particular risks it wishes to exclude…. 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, which requires a written document to be construed
against
the person who drew it up, would operate against Fedgen as
drafter of the policy.”
Therefore,
as also stated in the case of
Allianz
Insurance Ltd v RHI Refractories Africa (Pty) Ltd
2008(3)
SA 425 (SCA) at 428 paragraph 7,
“
...an
exception clause is restrictively interpreted against the insurer,
because it purports to limit what would otherwise be a
clear
obligation to indemnify
”
.
In
addition to the
contra proferentem
rule, Schreiner JA pointed out in the
case of
Kliptown Clothing, supra
at
106 H -107 C that there is also the further related rule that if a
warranty is ambiguous in an insurance contract, a court
should
incline towards upholding a policy against forfeiture on the part of
the insured. Relying on the
dicta
of Kotze JA in the case of
Norwich
Union Fire Insurance Society Ltd v SA Toilet Requisite Co Ltd
1924 AD 212
, Schreiner JA stated at 106 (
ibid
)
that:
“
The
warranty must be interpreted in the same way as any other condition
of the policy (ibid). In interpreting those conditions
not only
may the rule verba fortius accipiuntur contra proferentem operate
against the company, but there is the further rule that
the Court
should incline towards upholding the policy and against producing a
forfeiture. So KOTZE, J.A., in the Toilet Requisite
case, supra
at p. 222, said,
“
The
construction of a warranty is generally taken in favour of the
assured and against the insurer; and this is particularly the
case
when the warranty is expressed in doubtful or ambiguous language.
It is laid down that, as insurance is a contract of
indemnity, it is
to be construed reasonably and fairly to that end. Hence
conditions and provisos will be strictly construed
against the
insurers because they have for their object the limitation of the
scope and purpose of the contract.”
For this statement of
the position May on Insurance (secs. 174-175) was cited.
The opening words of sec. 175 in the
4
th
ed. are worth
quoting -
“
No
rule, in the interpretation of a policy, is more firmly established,
or more imperative and controlling, than that, in all cases,
it must
be liberally construed in favour of the insured, so as not to defeat
without a plain necessity his claim to the indemnity,
which, in
making the insurance, it was his object to secure. When the words
are, without violence, susceptible of two interpretations,
that which
will sustain his claim and cover the loss must, in preference, be
adopted.”
The same approach is
found in MacGillivray on Insurance Law (4
th
ed.) in sec.
708, where, after referring to the contra proferentem rule, the
learned author says,
“
But
whichever party is responsible for the language there should be a
tendency in all cases to hold for the assured rather than
for the
company. It is for the benefit of trade that policies should be
construed in favour of protection and against forfeiture.”
v)
Insurance
policies should also be construed in such a way as to allow for
business efficacy, and in accordance with sound commercial
principles.
[4]
vi)
Another
rule of restrictive interpretation is premised upon the principle of
eiusdem
generis
,
which holds that where a phrase with a particular wide meaning is
followed by a phrase of general application with a limited meaning,
the meaning of the former phrase can in those circumstances be
restrictively interpreted to the generic meaning of the limited
phrase.
[5]
Thus,
as encapsulated in the maxim
noscitur
a sociis,
words
or phrases can in certain circumstances be interpreted on the basis
of accompanying words or phrases
.
The
underlying notion is that general words accompanied by particular
words could in a specific context be limited to the
genus
,
species or class of the particular words. Thus, wider words could in
a specific context be limited by narrower ones with which
they are
associated. In other words, where it appears that the language
indicates a class,
genus
or
species, words or phrases utilised should be restrictively
interpreted to connote the same class,
genus
or
species as the accompanying words or phrases.
[6]
[21]
To the extent that the words and phrases in exception 6 must
generally be interpreted on the basis of their plain, ordinary
and
grammatical meaning, the plaintiff’s counsel referred the court
to dictionary definitions of certain words and phrases
used in
exception 6.
[7]
Thus,
the verb ‘collapse’ in relation to a structure is defined
to mean:
“
1
suddenly fall down or give way
2
…
3
fail suddenly and completely”
Furthermore, the noun
‘collapse’ is defined to mean:
“
1
an instance of a structure
collapsing
2
a
sudden failure or breakdown.
Whilst the notion
of the cracking of any structure appears to be self-evident in plain
and ordinary language, it may be mentioned
that the dictionary
definitions provided to the court included “
give way under
pressure or strain”.
THE PLAINTIFF’S
LOSS
[22] Against this
background, I turn now to the question whether the plaintiff’s
loss falls within the ambit of exception
6. As already stated, the
indemnification by the defendant in terms of the policy extends to
accidental, physical loss or damages
occasioned by “
any
cause”
excluding the stated exceptions. Both counsel
accepted that the words “
any cause”
in the context
of the policy conveyed wide and expansive cover, save and except for
the stated exceptions in terms of the policy.
[23] As already
mentioned, the stated exceptions in terms of the policy included
exception
6. Thus, the policy
provided that the defendant was not obliged to indemnify the
plaintiff against any accidental loss or
damage caused by the
contingencies specified in exception 6. The said contingencies are:
i)
settlement or bedding down;
ii)
ground heave;
iii)
the collapse or cracking of structures; or
iv)
the removal or weakening of support to any
property insured.
[24] Whilst counsel
for the plaintiff made a number of inter-linked submissions relating
to the interpretation of exception
6, it appears that none of these
submissions were directly premised upon any averred ambiguity in the
wording of exception 6. Be
that as it may, I now proceed to
deal with these submissions in turn.
[25] It was
emphasized by the plaintiff’s counsel that the proximate cause
of the damage in the present case was the
conduct of a third party,
who had unintentionally cut off of a part of the structure of the
building on the property. It was also
emphasized in this context that
the ‘breaking away’ of the awning was clearly not
deliberate to the extent that the
tenant who had placed signage over
the awning had not intended the awning to come crashing down. This
was particularly so as the
tenant’s own signage was also
destroyed when the awning came crashing down. It was further averred
in this context that to
the extent that the plaintiff is a property
owner, and to the extent that the policy also indemnifies the
plaintiff against loss
of rental, on a narrow construction of
exception 6 based upon business efficacy, the policy was not intended
to exclude accidental
damages caused by the plaintiff’s
tenants. It was also contended that the submission in this
regard was supported by
the fact that the parties clearly
contemplated that the property would be occupied by the plaintiff’s
tenants. Thus, it was
contended that the parties envisaged accidental
damage by tenants, who occupied the property.
[26] In my view,
the accidental nature of the third party conduct
per se
is of
no moment, given the wide ambit of cover, and given the fact that the
contingencies excluded from cover in terms of the policy
are
specified in plain and ordinary language. Thus, both the wide cover
of the perils insured against and the exceptions in terms
of the
policy apply, irrespective of whether such perils and exceptions are
caused by the tenant or not. In other words, irrespective
of the
averred proximate cause of the stated contingencies in terms of
exception 6, the pertinent issue is whether or not any of
the stated
contingencies have occurred. In the same way, the policy indemnifies
the defendant against accidental loss or damage
by “any cause”
(excluding, of course, the 9 stated exceptions), irrespective of
whether or not the proximate cause
of such accidental loss or damage
is attributable to a tenant’s conduct. More importantly in this
regard, on the basis of
an absolutely literal interpretation of the
stated contingencies in exception 6, it is my view that it is neither
impractical in
the circumstances, nor is it productive of startling
results, nor is it commercially unsound to state that the collapse or
cracking
of the awning, or the removal or weakening of support of the
awning constituted one of the contingencies described in exception
6.
[27]
My view relating to the interpretation of exception 6 in the context
of the policy is also supported by the fact that
the plain and
ordinary meaning of unambiguous words and phrases such as ”
collapse
”
,
or “
cracking
of structures
”
,
or the “
removal
of support
”
,
or the “
weakening
of support
”
in
relation to the awning do not result in any repugnancy within the
context of the policy. Moreover, from the perspective of both
parties, it is not commercially sound for an insurer to extend
insurance cover to property which has any part of its structural
integrity compromised. In addition, as already indicated, it is also
significant that if exception 6 is interpreted to include
the
collapse of the awning, such an interpretation will not
result
in any inconsistency with the rest of the terms and conditions of the
policy. There is accordingly no room in these circumstances
for a
more reasonable interpretation than the words themselves convey.
[8]
[28]
It was also averred by the plaintiff’s counsel on the basis of
the
eiusdem
generis
principle
that the words and terms stipulated in exception 6 should be
restrictively interpreted to connote the same class,
genus
or
species of causes of accidental loss or damages.
[9]
Thus,
as I understood this submission, it was averred that all the causes
of accidental loss or damages incorporated in exception
6 should be
restrictively interpreted on the basis that all the stated
contingencies in the said exception relate to “
the
removal or weakening of support”
to
the building on the property. It was accordingly averred that the
common denominator in the class or species of damages specified
in
exception 6 was rooted in the ‘building-bedrock’
relationship, or the relationship between the insured property
and
the ground (as a supporting factor). It was also contended in this
regard that the generic link between the stated contingencies
was
illustrated by the fact that the notion of settlement (which connotes
sinking down slowly in this context) or bedding down,
or ground
heave, or the removal or weakening of support, all fall within the
species or class of causes relating to lateral support
of the
building insured. It was accordingly contended that the wider notion
of collapse or cracking must be restrictively interpreted
to relate
to the collapse or cracking of the lateral support to the building,
effectively interpreting exception 6 on the basis
that the collapse
of the awning was not contemplated in terms of the provisions of
exception 6.
[29]
My difficulty at the outset with the averments premised upon the
eiusdem
generis
principle
is that there is nothing in the wording of exception 6 which suggests
that the eventualities or contingencies therein
stated are
generically linked by any common denominator as a species, or class.
Thus, to illustrate with a different example given
in Du Plessis,
The
Interpretation of Statutes
(1986)
at 154 the word “
premises
”
in
the context of an enactment which makes reference to “
any
place of entertainment, café, eating house, race course or
premises or place to which the public are granted to have
access
”
[10]
,
must obviously be restrictively interpreted to mean premises to which
the public have access. By contrast, none of the categories
of
contingencies mentioned in exception 6 readily conveys an
all-embracing generic meaning relating to lateral support of the
building. This is particularly so as exception 6 makes reference to
“
support
to any property insured”
and
not to support
to
the building
on
the property (my emphasis) or lateral support
to
the building
(my
emphasis), as suggested by the plaintiff’s counsel. Therefore,
on the basis of the plain wording of exception 6, the notion
of
collapsing or cracking of structures, and the notion of removal or
weakening of support to the property insured can accordingly
apply
equally to a building and to structures of a permanent nature such as
the awning, which form part of the insured property.
[30]
In these circumstances, to the extent that the insured property
expressly includes structures of a permanent nature,
fixtures and
fittings and certain equipment, which do not necessarily have
any bearing in relation to lateral support, as
suggested, there is no
basis for restricting the phrase “
property
insured
”
in
exception 6 to the building on the property only. Therefore, as
suggested by L C Steyn in Die Uitleg van Wette, 5
th
ed
(1981) at 30
[11]
, in the
absence of a distinct species or class of causes or an identifiable
link of general application between the stated causes,
the
eiusdem
generis
principle
cannot apply. This is particularly so as each of the stated causes in
exception 6 are autonomously stated and the word
“
or”
between
the phrases “
collapse
or cracking of structures”
and
the phrase “
the
removal or weakening of support to any property insured”
is
clearly expressed to convey alternatives in the context of except 6
and the policy as a whole.
[31] For similar
reasons, the suggestion that the wider notion of collapsing or
cracking was limited to collapsing or cracking
which resulted in the
removal or weakening of support to the building, is also misdirected.
As already indicated in this respect,
exception 6 clearly makes
reference to “
support to any property insured”
and
not support to the building only. Thus, in the context of the
hypothetical analogy given by the plaintiff’s counsel of
a load
bearing internal wall being accidentally knocked down, resulting in
the collapse of a part of the external building on the
property, I
was not persuaded by the suggestion that the policy would in those
circumstances presumably cover compensation for
the rebuilding of the
internal wall, but not for the collapse of any part of the external
building. This is so by virtue
of the fact that similar to
structures of a permanent nature, the internal wall is expressly
included within the ambit of the insured
property. Thus, in my view,
the accidental collapse of a load bearing internal wall would also
fall within the ambit of exception
6, irrespective of whether or not
the said collapse is linked to the collapse of any support to the
building or not. This is also
supported by the fact that the section
in the policy stipulating the perils covered by the policy, also
expressly excludes “
loss or damage to retaining walls
”.
[32]
In these circumstances, as stated in the
Grobbelaar
case,
supra
at
255 A-C, even though the
eiusdem
generis
principle
is a useful instrument in certain cases where a clear class or
species is identified, this principle must not be utilised
as a means
to substitute an artificial intention for the real intention of the
parties, as evidenced by the plain language used.
[12]
[33] In the final
analysis, it is significant in the present case that the insured
property expressly includes structures
of a permanent nature. Thus,
as acknowledged by the experts, the awning is an integral part of the
property insured. It is also
pertinent on the basis of the facts
which are common cause that the awning was cracked on the underside
and
(my emphasis) thereafter physically and accidentally
collapsed. Therefore, despite the fact that plaintiff’s counsel
characterised
such accidental loss on the basis of the awning
‘breaking away’, such accident can, in my view, equally
well be described
in terms of a number of the dictionary definitions
provided to the court. In these circumstances, the dictionary
definitions provided
simply sustained the clear, plain and
unambiguous notion of collapsing or cracking of a structure of a
permanent nature. To paraphrase
on the basis of the said dictionary
definitions, it can hardly be disputed that the awning suddenly fell
down and gave way, or
failed suddenly and completely. Moreover, even
Fleming characterised the damage to the awning in his evidence on the
basis of a
“significant collapse”. In addition, the
experts agreed in relation to the collapse of the awning that that
the cutting
away of steel plates resulted in the “
removal
and weakening of the support structure for the concrete awning
”.
In these circumstances, the contingencies which occurred included the
cracking of the awning, the collapsing of the awning,
the removal of
the support to the awning, as well as the weakening of support to the
awning. In my view, the occurrence of any
one of these contingencies
by itself clearly places the events in this matter squarely within
the ambit of exception 6. As such,
as already stated, on a clear and
unambiguous reading of exception 6, it was not intended by the
parties that the policy would
indemnify the plaintiff for damages
caused as a result of the awning collapsing.
CONCLUSION
[34] In these
circumstances, to the extent that the awning was a structure of a
permanent nature, which formed an integral
part of the insured
property, and to the extent that the awning was not only cracked, but
also collapsed, and the support thereof
was weakened, the accidental
loss and damages sustained by the plaintiff fall within the ambit of
more than one peril specified
in exception 6. As such, the provisions
of exception 6 apply and the plaintiff is not indemnified against
such loss or damages
in terms of the policy.
ORDER
[35] Based on the
aforegoing, the following order is made:
i)
It is declared that the plaintiff is not entitled
to indemnification in terms of the Protect Gold Policy between the
parties, as
a result of the damages sustained by the plaintiff
pursuant to the collapse of a concrete awning on the 1
st
of November 2009 on the immovable property owned
by the plaintiff at 132 Field (now Joe Slovo) Street, Durban.
ii) The plaintiff is
directed to pay the defendant’s costs.
DATED AT JOHANNESBURG
THIS 11th DAY OF JANUARY 2012.
H MAYAT
JUDGE OF THE SOUTH
GAUTENG
HIGH COURT
For the plaintiff :
K J Kemp SC
Instructed by : Cox
Yeats Attorneys c/o Knowles Husain Lindsay Inc
For the defendant :
A Govender
Instructed by :
Norton Rose (Incorporated as Deneys Reitz)
[1]
The
principles in this respect were set out in the case of
Agiakatsikas
N.O v Rotterdam Insurance Company Limited
1959 (4) SA 726
(C) at 727 H
[2]
This
“golden rule” of interpretation is endorsed in numerous
cases including
Scottish
Union & National Insurance Co Ltd v Native Recruiting
Corporation Ltd
1934
AD at 464-5 and a long line of cases thereafter, including the case
of
Coopers
& Lybrand and OthersvBryant
[1995] ZASCA 64
;
1995
(3) SA 761
(A) 767E-768E
[3]
See
Ivamy
General
Principles
of
Insurance Law
5
th
edition
331
et
seq
[4]
See,
for example
Van
Zyl NO v Kiln Non-Marine Syndicate NO 510of Lloyds of London
2003(2)
SA 440 (SCA) at 457B-D and
Grand
Central Airport (Pty) Ltd v AIG South Africa Ltd
2004(5)
SA 284 (W) at 288 H-I
[5]
See,
for example, the case of
Moodley
v Scottsburgh/Umzinto North Local Transitional Council and another
2000(4)
SA 525 (D) at 530I-531C
[6]
See,
for example, the case of
Grobblaar
v Van der Vyver
1954(1)
SA 248 (A) 254 G-H
[7]
The
court was given copies of relevant pages of the Oxford
dictionary(with the edition not being specified) stipulating
the
dictionary definitions of certain words
[8]
See
Scottish
Union
case,
supra
fn.
2 at 465
[9]
See
the case of
Grobbelaar
supra at
254
[10]
Referred
to in the case of
Moodley,
supra
at
531B-C
[11]
Also
referred to in the
Moodley
case,
supra
at
page 531E-F
[12]
See also
Lindsay
& Pirie v General Accident, Fire & Life Assurance
Corporation Ltd
1925
AD 574