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[2012] ZAGPJHC 191
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Lloyds of London c/o Lloyds of South Africa v Baran Transport CC (18463/2010) [2012] ZAGPJHC 191 (16 October 2012)
REPORTABLE
SOUTH
GAUTENG HIGH COURT
JOHANNESBURG
CASE NO
:
18463/2010
DATE:16/10/2012
In
the matter between
LLOYDS OF LONDON c/o LLOYDS OF SOUTH
AFRICA
....................................................................................................
PLAINTIFF
and
BARAN TRANSPORT
CC
…...............................................................
DEFENDANT
J U D G M E N T
Wepener J:
[1] The plaintiff, an insurer or
underwriter, sues the defendant for repayment of an amount paid to
the defendant pursuant to damages
sustained to the vehicle of the
defendant, insured by the plaintiff. The plaintiff’s
allegations are, generally stated, that
it paid out for repairs to
the insured vehicle whilst believing that it was obliged to do so.
However, by virtue of an exclusionary
clause contained in the
agreement of insurance, it was not obliged to indemnify the
defendant. It is alleged that the facts which
the plaintiff rely on
to avoid liability only came to its attention after paying out the
amount for the repairs of the vehicle.
[2] The clause relied upon by the plaintiff reads as follows:
‘
Specific
exceptions:
The Company shall not be liable for any accident,
injury, loss, damage or liability
a…
b…
c incurred while any vehicle is being driven by
(i) the insured
while under the influence of intoxicating liquor or drugs…
’
[3] In addition, the plaintiff
alleges that ‘
any
claim made under the agreement of insurance which is in any respect
fraudulent or in which any fraudulent means or devices are
used, by
the defendant or anyone acting on their behalf or with their
knowledge or consent to obtain any benefit under the Insurance
agreement or if any event is occasioned by the wilful act or
connivance of the defendant, then the benefit under the Insurance
agreement in respect of such claim shall be forfeited.
’
The plaintiff alleges that such was the case in this matter and the
defendant should forfeit any benefit.
[4] A third issue to be determined is what the terms of the agreement
between the parties were. It is common cause that an agreement
existed and the parties accept that fact. The defendant, however, put
the plaintiff to the proof of the terms of the contract that
existed
between them. As a result of my finding on the first two issues
raised for consideration it is unnecessary for me to determine
the
exact terms of the contract.
[5] On the assumption that the insurance agreement containing the
exclusionary clause, above, was indeed the agreement between
the
parties, I turn to deal with the two factual issues i.e. whether the
driver was under the influence of intoxicating liquor
and whether the
defendant made fraudulent misrepresentations when submitting its
claim.
[6] The evidence presented on the first issue is that of Inspector
Tsotetsi (‘the inspector’) and Mr. Enoch Tsotetsi,
a
co-employee of the driver of the truck, which formed the subject
matter of the insurance claim.
[7] The inspector testified that on 24 November 2008 at about 14h20,
he attended the scene of an accident. There had been two incidents
at
the scene. First, a vehicle had collided with one of the road workers
who did construction work in the area and secondly, the
insured
vehicle had overturned and fell onto a tow truck, whose occupant was
fatally injured as a result of the incident.
[8] The inspector concentrated on the second incident and found the
driver of the insured truck upon the scene. He established
that an
ambulance had come up in the wrong direction of an off ramp, against
the flow of traffic. The driver of the insured vehicle
confirmed this
and stated that he had swerved out for the ambulance. The inspector
confirmed the facts of the incident with other
persons on the scene.
[9] So much for the evidence regarding the collision. There is
nothing in this evidence to show the manner of driving of the driver
of the insured vehicle from which it can be concluded that he was not
able to properly control his vehicle. On the contrary, the
evidence
tends to show that the conduct of the driver of the ambulance caused
an emergency situation and that the driver of the
insured truck was
obliged to swerve away in order to avoid a collision. This lead to
the truck overturning.
[10] The inspector then realised that the driver of the insured
vehicle smelt of alcohol. He said that the driver had bloodshot
eyes.
He further observed that his speech was slow as if deliberately
attempting to compose himself. The driver stated that he
had been
drinking the day before. The inspector also stated that the driver
was cooperative and that he had sustained injuries
to his head. He
confirmed that the driver gave an account of the incident that seemed
acceptable. Although in a state of shock,
the driver had a clear
conversation with the inspector. He also noted that the driver’s
balance was not disturbed and described
him as being stable. He
confirmed that a sister drew a blood sample of the driver. Under
cross-examination he confirmed that it
was the smell of alcohol that
primarily actuated him to arrest the driver of the insured vehicle.
The inspector also stated that
he attended court from time to time in
relation to charges against the driver of the insured vehicle, but he
did not know what
happened to the case against the driver.
[11] Without considering the
evidence presented for the defendant save, for one aspect, which I
will refer to, I have to decided
whether the evidence lead by the
plaintiff shows on a balance of probability that the driver was under
the influence of intoxicating
liquor with the result that the
exclusionary clause can be relied upon by the plaintiff. Mr
Hollander, appearing on behalf of the
plaintiff, accepted that the
plaintiff had the onus to prove that the driver was indeed under the
influence of intoxicating liquor.
In order to find that the driver
was under the influence of intoxicating liquor, it is necessary to
find that the driver’s
skill and judgment, normally required of
a driver in the manipulation of a vehicle, were indeed diminished or
impaired as a result
of the consumption of intoxicating liquor (see
Price v Mutual and
Federal Insurance Co (Pty) Ltd
2007
(4) SA 39
(SECLD) at para 10 and
Incor
General Insurance Ltd v Boonzaaier NO
1974
(4) SA 200
(C) at 203C-E.)
[12] It appears that, despite the positive factors in the driver’s
favour as testified to by the inspector, the plaintiff
relies on four
aspects to argue that I should infer that the driver was under the
influence of intoxicating liquor. These are:
the smell of liquor; the
bloodshot eyes; the slow speech; and the driver’s admission to
having taken liquor the previous
day.
[13] However, the co-worker, Mr. Tsotetsi, during his
cross-examination, virtually by chance mentioned that the driver
normally
speaks very slowly. Only three factors can therefore be
relied upon by the plaintiff in order to attempt to discharge the
onus
upon it that the driver’s faculties were impaired. This is
the smell of liquor, bloodshot eyes and the driver’s admission
of having consumed alcohol the previous day. In my view, neither of
these three factors can refute the fact that driver was composed,
gave a clear and acceptable account of what happened and appeared to
be balanced. There is nothing to show that his ability to
manipulate
the vehicle was impaired. His version that the ambulance caused him
to swerve was corroborated on the scene and it can
not be inferred
that his driving ability was impaired at the time of the accident.
[14] I am of the view that the plaintiff failed to establish the
facts required for the exclusionary clause to be available to
it to
avoid it liability under the agreement of insurance, should that
clause indeed form part of the agreement.
[15] The plaintiff’s reliance on an exclusion of liability
based on the alleged fraudulent statements on the claim form is
by
and large based on the fact that the form notes that the driver was
not tested for alcohol or drugs whilst in truth and in fact,
he was
so tested. Mr Barnard, a manager in the employ of the defendant,
testified that the information contained in the form is
the exact
information which he had in his possession as supplied by the driver
when he returned to work a week or two later. He
also said that on
the day after the incident it was found that the driver had been
released by the police and he found no indications
that he would be
charged for any offence.
[16] I have observed Mr. Barnard in the witness stand and there is no
reason to disbelieve him. The fact that he is not proficient
in a
second language is of no moment. He answered questions to the best of
his ability and made a good impression on me. There
are not
contradictions or inherent improbabilities in his evidence which
would lead me to doubt his evidence. One aspect of his
evidence was
criticised by Mr Hollander. Mrs Groenwald testified that she
telephoned a Mr Barnard of the defendant during March
2009 to discuss
the issue of the driver being under the influence of liquor at the
time of the accident. She said that Mr Barnard
said that the driver
had run away. Four observations need to be made in regard to this
evidence. Firstly, the driver indeed absconded
from his work sometime
after the accident. Secondly, why would Mr Barnard give such an
answer if he knew what he had filled in
on the claim form during
December 2008? Thirdly, if the issue was discussed with Mr Barnard
the underwriter knew about the problem
during March 2009 then why did
it pay the claim in April 2009? Fourthly, there was some uncertainty
in the manner in which Mrs
Groenewald gave her evidence when she was
asked whether she could be mistaken. I am of the view, that her
evidence does not detract
from the veracity of Mr Barnard’s
evidence. I accept his evidence as true. His explanation of how it
came about that the
form contained the information that it does has a
ring of truth and I find the information was supplied in the bona
fide belief
that it was true.
[17] The only argument before me was that the information was
fraudulently supplied and thus it would allow the plaintiff its
liability under the agreement of insurance. As a result of the
factual finding made by me, the plaintiff failed to establish a
basis
to rely on the exclusion of liability based on fraud.
[18] At the end of the case presented for the plaintiff, the
defendant asked for absolution from the instance. I refused the
application
and said that I will give my reasons during judgment.
These reasons have to a large extent become academic but in short,
and based
on the evidence presented by the plaintiff, the following
was the position when it closed its case. On the evidence before me,
the information supplied to the underwriter was clearly wrong,
whether falsely or innocently supplied was a matter of inference.
Where there are two inferences to be drawn of more or less equal
probability, absolution will be refused. The information on the
form
may well have been as a result of an innocent mistake or as a result
of a deliberate falsification but that was not to be
speculated about
at the stage of the proceedings when absolution was sought. On that
basis alone, I was of the view that the court
may possibly find for
the plaintiff and the other considerations did not come into play. In
the circumstances I refused absolution
of the instance.
[19] In all the circumstances the plaintiff failed to prove its case
against the defendant on a balance of probabilities on any
of the
factual basis advanced by it. I consequently make the following
order:
‘The plaintiff’s claim is dismissed with costs.’
WEPENER J
JUDGE OF THE HIGH COURT
COUNSEL FOR THE
PLAINTIFF:
Adv
L Hollander
PLAINTIFF’S
ATTORNEYS:
Gjersoe
Incorporated
COUNSEL FOR THE
DEFENDANT:
Adv
S Du T Maritz
DEFENDANT’S
ATTORNEYS:
Esthe
Muller
DATE/S OF HEARING:
10 - 11
October 2012
DATE OF JUDGMENT:
16 October
2012