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[2012] ZAGPJHC 298
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Lloyds of London C/O Lloyds of South Africa v Baran Transport CC (18463/2010) [2012] ZAGPJHC 298 (16 October 2012)
REPUBLIC OF SOUTH
AFRICA
SOUTH GAUTENG
HIGH COURT JOHANNESBURG
CASE
NO: 18463/2010
DATE:
16 OCTOBER 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:
1. 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