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[2002] ZASCA 120
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Van Zyl NO v Kiln Non-Marine Syndicate No 510 of Lloyds of London (216/2001) [2002] ZASCA 120; [2002] 4 All SA 355 (SCA); 2003 (2) SA 440 (SCA) (26 September 2002)
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
Case no 216/2001
REPORTABLE
In the matter between
Anna Maria Magdalena van Zyl NO
Appellant
and
Kiln Non-Marine Syndicate No 510 of
Lloyds of London Respondent
Before: Nienaber, Schutz, Cameron, Brand JJA and
Heher AJA
Heard: 30
August 2002
Delivered:
26 September 2002
Insurance – accidental bodily injury or
death policy – ‘accident’ – ‘wilful
exposure to danger’.
_______________________________________________________________
JUDGMENT
_______________________________________________________________
SCHUTZ
JA
[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’.
[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
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.
[3] The
deceased was a bank manager at Klerksdorp. On the night of his death
he attended a party at Wolmaransstad, 110 kilometers
away. He had
made no arrangements to sleep over or to take a lift back. He
arrived at the party at about 8 pm. 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
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
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 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 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 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 self-inflicted injury, suicide or such
an attempt’. (The emphases
in this paragraph have been
supplied by me.)
Interpretation
[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
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 must be restrictively
interpreted (
Auto Protection Insurance Co Ltd v Hanmer-Strudwick
1964 (1) SA 349(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, 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)
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 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):
‘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
[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 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
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 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.
[8] For
those reasons I am of the view that the ordinary rule does apply, so
that the onus of proving the exception rests 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 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.
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
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, seriously decreasing reaction times. Judgement
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/100ml has been 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 the
probable
consequence of driving in that condition. Whilst giving respectful
weight to what dr Klepp says, I think that in expressing this
opinion
she trespasses onto the field of the judge. Whether there was an
‘accident’ in terms of the policy is a matter
of law, not
of medical opinion.
[12] In
any event, if dr Klepp does indeed intend that the happening of an
accident is probable in the sense that it is more probable
to occur
than not, I do not think that the data given by dr Klepp supports her
conclusion. The reason is that no conclusion as
to probability can
be drawn if the multiplicand is 1 and one knows further only the
multiplier (50) but not also the incidence
of accidents with sober
drivers. Suppose that every time that such a driver drives there is
a 1 in a 1 000 chance of his having
an accident, then the chances of
his being involved in one with his blood alcohol at 0.19 is 50, which
is far below a just over
50 % chance, which would be represented by
501 chances out of a 1 000. In any event, to express the opinion
without adverting
to the facts of a particular case is unrealistic.
The chance of a drunken driver having an accident over 110 km is
obviously far
greater than when a driver similarly drunk travels 5
km. Accordingly I consider that there is no factual basis for the
argument
grounded on probability of occurrence.
[13] The
legal argument for the insurer, based on the alleged probability,
proceeds along these lines. The definition of ‘accident’
identifies it with a ‘fortuitous’ event. This accords
with the meaning generally attributed to the word accident –
see eg
Agiakatsikas NO v Rotterdam Insurance
Co Ltd
1959 (4) SA 726(C)
at 729C.
‘Fortuitous’ is rendered by the SOED as ‘That
happens or is produced by fortune or chance: accidental
…’
If, in the circumstances, the happening of an accident was
‘probable’, as dr Klepp says it was, the
argument goes,
then there is more than a 50 % chance of its occurring, so that it
would be the natural or ordinary result of driving
with an alcohol
concentration of 0.19 and could not properly be called a fortuitous
happening. The process of reasoning may be
faultless, but, as I have
sought to explain, the premiss is lacking. Also, logic may be
overmastered by the colloquial, as I shall
seek to explain.
[14]
Marcell
Beller Ltd v Hayden
[1978] QB 694
was also
concerned with a drunken driver who was insured against ‘accidental
injury’. Judge Fay QC said (at 701B-C,
701F, 703E-H):
‘Having considered this evidence
I have no doubt that the deceased’s consumption of alcohol
played a causative part
in the catastrophe. The deceased’s
strange loss of control of his car when it was proceeding in ordinary
conditions on an
ordinary road becomes readily explicable in the
light of his blood alcohol content. His excessive speed and his
inability to correct
the situation into which it led him are in my
view clearly associated with the loss of judgment induced by alcohol.
If the immediate
cause of the crash was the deceased’s
negligence, its predisposing cause was the drink he had taken. In
the light of these
findings of fact I turn to the legal issues.’
……..
‘In dealing with this argument I
think it is important to keep distinct the two causative elements,
namely the immediate cause
which is the deceased’s manner of
driving and the predisposing cause which is his drinking. If the
first alone is regarded
the crash was accidental. It has long been
established and was accepted by counsel that the assured’s
negligence does not
deprive a happening of the character of
accidental.’
……..
‘It seems to me important that
in a document such as an insurance policy which ought to be
understandable by laymen, not to
depart if possible from the ordinary
meaning of English words. This was also the view of Phillimore LJ
when he cited the workmen’s
compensation case of
Trim Joint
District School Board of Management v Kelly
[1914] AC 667
and
said
[1971] 2 QB 554
, 585:
‘All their Lordships agreed that
the word “accident” must be given its ordinary meaning in
the context –
they differed four to three as to what that
ordinary meaning was.’
I may be risking misinterpreting the
ordinary meaning of ‘accident’, but I am firmly of the
view that the word covers
the happening with which I am dealing. In
drafting the narrative part of this judgment I have avoided
pre-empting the decision
by using the word ‘accident’,
but I have been conscious that wherever I have used the neutral term
‘crash’
or ‘what happened’ or ‘catastrophe’
it would have been better English usage to call it an accident. I am
convinced that the man in the street would say that the deceased died
in a motor accident. A further reason for adopting this
view is that
had some other person been killed by the deceased’s driving
this would have been an accident within the meaning
of his own motor
policy (see
Tinline v White Cross Insurance Association Ltd
[1921]
3 KB 327).
If the same offence killed both a driver and a bystander,
it is the kind of decision that brings the law into disrepute, to
call
one an accident and the other not an accident.’
[15]
I
agree with the approach of the learned acting judge (as we would call
him) and consider that it is applicable to this case. Like
him, when
preparing this judgment I have constantly had consciously to draw
back from using the word accident as the short colloquial
way of
describing the accident with which we are concerned (the restraint is
now gone). Especially should this approach be followed
when one
applies the rules of interpretation quoted from the
Fedgen
and
Barnard
cases.
The Court should not ‘defeat without a plain necessity his
claim to an indemnity, which in making the insurance it
was his
object to secure’ (the words of Wessels JA as quoted in the
Barnard
case). (The
facts in this case happen to be such that it is her claim not his
claim.) Even the trial judge, whilst holding that
an accident had
not been proved, several times fell into the trap of describing it as
such – ‘het daar ‘n ongeluk
gebeur’,
‘breinbloeding weens ‘n motortuigongeluk’ and ‘om
een of ander rede in ‘n motorongeluk
betrokke was’. The
pull of the colloquial is strong. In the words of Lord Macnaghten in
Fenton v J Thorley and Co Ltd
[1903] AC 443
at 448 the popular and ordinary sense of the word
‘accident’ denotes ‘an unlooked-for mishap or an
untoward event
which is not expected or designed’. Immediately
after referring to this passage
The Law of
South Africa
Vol 12 para 291 proceeds:
‘An accident is therefore an
occurrence or event of a fortuitous nature. The very essence of an
accident is that its occurrence
is not intended by its victim.’
[16] I would add that it is
our law too that the fact that the insured was negligent (as the
deceased undoubtedly was) does not
in itself prevent the Court from
holding the circumstance to constitute an accident:
Griessel
NO v SA Myn en Algemene Assuransie Edms Bpk
1952
(4) SA 473(T)
at 477F-G.
[17] My conclusion is that
Mrs van Zyl has proved that her husband was killed in an accident in
terms of the policy.
Has the insurer proved
wilful disregard of danger?
[18] In the forefront of
the argument for Mrs van Zyl is put the consideration that there is
no express provision in the policy
concerning alcohol. Such an
exclusion is not uncommonly found in accident policies. But I do not
think that, standing on its
own, this argument can succeed, even
though it is a factor to be weighed in the balance. The question
still remains whether, when
he drove as he did, the deceased wilfully
courted danger. One has only to take the case of a driver, whose
policy does not expressly
deal with alcohol, being warned by a doctor
that he is in no fit state to drive, yet proceeds to do so. Clearly
he does wilfully
court danger.
[19] In their context what
do the words ‘wilful exposure to danger’ mean? There are
two senses of the word ‘wilful’
contained in the SOED
which could have application. The first is ‘Asserting 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’.
The second is ‘Done
on purpose or wittingly; purposed, deliberate, intentional (Chiefly,
now always, in bad sense, of a
blameworthy action; freq. implying
“perverse, obstinate”.)’.
[20] At best for the
insured the second sense applies. What the insurer would have to
show is that, subjectively speaking, the
insured acted intentionally
in disregarding the danger. Negligence would not be enough. Nor
would be the consideration that,
objectively speaking, there was an
exposure to danger. But even this second meaning tends strongly to
be shaded by its being used
in a ‘bad’ sense.
[21] If the first meaning
is intended it would strengthen the insurer’s case. It would
extend itself to the man who has heard
all the warnings of the risks
of drunken driving, but who knows better than the experts, who is in
his own mind immune to accidents,
who can ‘hold his liquor’,
who is in short perverse and not apt to heed due warning.
[22] I am of the view that
the first meaning was intended, whilst being mindful of the rule
quoted above, that a policy should be
interpreted in favour of the
insured. The first reason for my view is linguistic. There is a
marked contrast in the course of
three lines between the word
‘wilful’ on the one hand and ‘intentional’
and ‘suicide’ (which
is an intentional act) on the other.
This suggests that something different is intended. What the
difference would then be, is
clear enough. It would be, broadly
speaking, that not only intentional action but also refusal to heed
warnings or the experience
of others would be included. My second
reason supplements the textual one. It is that it is quite to be
expected that an insurer
would not intend to extend cover to one who,
out of perversity, would not hear. Nor, I suppose, 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.
[23] But on the facts of
this case, I am of the opinion that, even if the second narrower
sense is the appropriate one, the conduct
of the deceased was
‘wilful’. I do not find any of the cases to which we
have been referred determinative of this
one and we are thrown back
on the evidence before us.
[24] According to dr Klepp,
in a man of the deceased’s size and weight a concentration of
0.19 translates into an intake of
at least 400 ml of brandy. 400 ml
is more than half a bottle. But there is more to the case than that
a lot was drunk. The deceased
went 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. I find it impossible to believe
that he did not have these facts in mind as he took successive
drinks. When one reaches
the point in the record where are included
photographs of a wreck and a body in the veld one’s reaction is
one almost of
inevitability. Nor do I find it possible to believe
that the deceased was not consciously aware that driving after taking
many
drinks poses real dangers. No doubt he was not acquainted with
all the detail which dr Klepp has so clearly set out. Her evidence
establishes objective standards and cannot in itself reveal what the
deceased knew, foresaw and intended. But I cannot accept
that a man
with experience of life did not have a broad appreciation of the risk
he was taking, however unrefined his knowledge
was. Even if he was 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 extended
publicity that has been given to the
perils of drinking and driving
in the last few decades (if I may not take judicial knowledge of
this, dr Klepp has said it in evidence).
In consequence I fail to
see how even the most benevolent of interpretations of the exception,
including an acceptance of the
second sense of ‘wilful’,
can avoid the facts and the inference to be drawn from them as by far
the most probable.
Nor am I deterred by the consideration that in
the
Marcell Beller
case (above) the judge held that the exception equivalent to the one
here in issue had not been established. Although there the
alcohol
concentration was as high as 0.26, the finding was that there was no
evidence to show that subjectively the insured appreciated
the risk
that he was taking. In any event the case was decided 24 years ago.
Since then times have moved on.
[25] In drawing an
inference on the probabilities, among the things I have taken into
account are the following two. Unlike many
of the knocks in life,
motor accidents often have catastrophic consequences. We all know
this – and it is something that
any sensible man will have
before his eyes. The second factor is that the incidence of
accidents due to drunken driving is not
minimal. The occurrence of
such an accident is not a remote possibility. It frequently happens.
When expressing these views
I do not do so in order to deliver a
moralistic lecture about drunken driving, but simply to state what in
my opinion ordinary
people know. The presence of both these factors,
one adding force to the other, is important in this case, and may
distinguish
it from a type that was raised in argument, exemplified
by the parachute that fails to open. Although the consequence in
that
case is also catastrophic, the chances of it happening may be so
small that it cannot be said that there is a wilful exposure to
risk
by the jumper. I express no opinion on such a case.
[26] I revert to the first,
broader, sense of ‘wilful’. If it applies, as I think it
does, then even if the deceased
had talked himself into believing
that he was not like other people, he was being perverse and
consequently acted wilfully. Of
course, in some people, liquor
causes or increases perversity, and if perversity is the issue, I do
not see that the manner in
which it came about is relevant, short
that is, of a person being so drunk, contrary to his design, that he
does not know what
he is doing. This observation, clearly relevant
to the first sense, may, in accordance with the note to the
definition of the
second sense, ‘freq. implying “perverse,
obstinate”’ have application to the second sense also.
[27] I have so far
approached the matter on the basis of the deceased’s
anticipations on arrival at and during the course
of the party. What
was his condition when he got into his car? It may be that he was so
befuddled that he could not appreciate
the riskiness of what he was
about to do. If so he may not have been capable of wilful exposure.
But the evidence is against
that. One of the witnesses says that he
appeared to be normal. That might mean that he was capable of
rational decision. However,
as this is uncertain, I would rather
base my decision on his conduct prior to this moment.
[28] I find that the
deceased did wilfully expose himself to risk, so that the insurer has
established the exception. Accordingly
the claim was rightly
dismissed.
[29] The appeal is
dismissed with costs.
_____________
W P SCHUTZ
JUDGE OF
APPEAL
CONCUR
CAMERON JA
HEHER
AJA
BRAND JA
[30]
I
have read the judgment of my brother Schutz. Broadly speaking I
agree with what is said in paras [1] to [18] thereof but I
respectfully disagree with his statement of the law, his
interpretation of the facts and his ultimate conclusion, as contained
in paras [19] to [29]. In my view the insurer failed to prove that
the deceased had 'wilfully exposed himself to danger' within
the
meaning of the exception upon which the insurer sought to rely.
[31]
The
exception to be considered, reads as follows:
'Underwriters shall not be liable in respect of death or disablement
... due to:
...
Wilful exposure to danger (except in an attempt to save human life).
Intentional self-inflicted injury, suicide or any such attempt.'
The
case turns in the main on the proper connotation of wilful.
'Wilful' must not be viewed in isolation. It must be read in
context and in its relation to 'exposure' and to 'danger'. Each of
these three words takes colour from its juxtaposition to the
others.
'Exposure' refers to some form of conduct whereby the insured places
himself at risk or lays himself open to the realisation
of a
particular 'danger'. 'Danger', I think, cannot simply mean any
danger or the risk of any danger. In that wide sense the
policy
would lose much of its force. As was stated by Neill LJ in
Morley
and Morley v United Friendly Insurance plc
[1993]
1 Lloyds LR 490 (CA) at 492-3 with reference to an exclusion clause
in the accident insurance policy under consideration
which referred
to 'wilful expose to needless peril':
'It is common ground that the "peril"
referred to in the exclusion clause means a risk of suffering one or
more of the
injuries which the policy of insurance was designed to
cover'
and
at 493 (column 1)
in fine
:
'It is clear ... that the words cannot
be construed too strictly. Thus they cannot be construed so as to
remove insurance cover
from an insured who engages in contact sports
such as football'
'Danger'
in the context in which the phrase is used in the policy therefore
refers to the 'danger' insured against, that is to say,
an accident
resulting in death or bodily injury.
[32]
The
required wilfulness, it seems to me, has to be directed to the
'exposure to danger' and not to the activity which causes the
danger.
Within this context Schutz JA holds the view that 'wilful' can have
one of two possible meanings. According to what
he refers to as the
first meaning ‘wilful’ includes the concept of
perversity, obstinacy or stubbornness while in its
second meaning the
term would be synonymous with 'deliberate or intentional'. Schutz
JA then expresses his preference for the
first meaning. This leads
to our first area of disagreement. I accept that in accordance with
one of its dictionary meanings,
'wilful' can convey the meaning of
perverse, obstinate or stubborn in the sense of 'wicked' or morally
depraved. I do not believe,
however, that this was the meaning the
parties to the insurance policy had in mind. Purely as a matter of
language, 'wilful'
does not bear substitution for 'perverse' or
'obstinate' in the phrase to be construed. To speak of a perverse
or obstinate exposure
to danger strikes me as contrived.
Furthermore, the words in parentheses seem to contradict this
meaning. The situation therein
described is specifically excepted.
If it had not been excepted it would of course have been included
and as such would have
typified the sort of conduct the word 'wilful'
was meant to describe. In my view it goes without saying that the
situation described,
that is, an attempt to save a human life, can
never be characterised as ‘obstinate’, ‘stubborn’
of 'perverse'.
Schutz JA finds support for his interpretation of
‘wilful’ in what he describes as 'the marked contrast in
the course
of three line between "wilful" on the one hand
and "intentional" and "suicide" (which is an
intentional
act) on the other.' With respect, I do not believe that
the references to suicide and intentional self-inflicted injury in
the
same clause of the policy lend support to the meaning of 'wilful'
that Schutz JA prefers. In my view these references may just
as
well be used in support of the argument that 'suicide', 'intentional
self-inflicted injury' and 'wilful exposure to danger'
all belong to
the same genus in that they all have the common element of deliberate
'intent'.
[33]
In
my view, the most natural meaning to be ascribed to the term 'wilful'
within the context of the phrase under consideration is
that of
'intentional' or 'deliberate'. Linguistically these synonyms can
quite comfortably be used as substitutes for 'wilful',
as in the
expression 'deliberate or intentional exposure to danger'. Moreover,
counsel for the insurer accepted that the meaning
to be ascribed to
‘wilful’ in the present context is 'deliberate' or
'intentional'. His very argument was that the
deceased 'deliberately
exposed himself to danger', ie to an occurrence which was potentially
harmful and which, as a probability,
he must have foreseen
[34]
My
conclusion that 'wilful' must in the present context be construed as
synonymous with 'deliberate' or 'intentional', is not the
end of the
enquiry into the meaning of wilful. The question remains whether a
person can be said to expose himself to a particular
danger
'wilfully' – or for that matter, 'deliberately' or
'intentionally' - purely because he contemplates the realisation
of
that danger as a notionally possible consequence of the activity that
he is about to embark upon. I think not. The unfortunate
reality
is that by living in a modern society one knowingly exposes oneself
to the notional danger of being killed or maimed through
sometimes
the most mundane of activities, such as driving in a motor car from
Johannesburg to Cape Town. It cannot be thought
that participation
in these mundane activities would render the insurer not liable under
the policy. To refer to another example,
can it be said that a
parachutist is wilfully exposing himself to the danger of his
parachute not opening within the meaning of
the policy because he
contemplates this eventuality as a remote possibility? I think not.
The question is then, what more is
required than contemplation of
the consequences as a possibility in order to constitute wilfulness?
[35]
In
my view 'wilful', when read in conjunction with 'exposed to danger',
requires:
(a) a contemplation and appreciation of the possibility
of the occurrence of a particular eventuality (in this instance
bodily injury
or death due to an accident);
(b) the realisation that the eventuality is not merely a
remote contingency but a real possibility;
(c) a reconciliation with its occurrence in the sense of
a conscious decision to proceed notwithstanding (a) and (b) ie with
indifference
to the appreciated consequences of his act.
This is analogous to the
concept of
dolus eventualis
in the criminal law (see eg
S v Ngubane
1985 (3) SA 677(A)
at 685;
S v Beukes
1988 (1) SA 511(A)
522 and
S v Maritz
1996
(1) SACR 405
(A) at 416E-G) which has also been extended to insurance
law (see
Nicolaisen v Permanente
Lewensversekeringsmaatskappy Bpk
1976 (3) SA
705
(C) at 709E-H).
[36]
The
viewpoint that the requirement of 'wilfulness', when read in
conjunction with 'exposure to danger', comprises more than merely
an
appreciation of the particular eventuality as a theoretical or a
hypothetical possibility is, moreover, in line with current
English
authority, as appears, eg from the following statement in Halsbury’s
Laws of England, 4 ed (reissue) vol 25 par 583:
'A more modern form of accident policy
may exclude liability consequent upon the assured's deliberate
exposure to "exceptional
danger" or wilfully exposing
himself to "needless peril". In the former case the word
"deliberate" imports
a subjective test and the exception
does not apply where he drives a car knowing that he has consumed an
excessive amount of alcohol
unless there is evidence that he thought
about the risk he was taking and deliberately chose to ignore it.
In a case where injury
caused by "wilful exposure to needless
peril" was excluded from cover, it was not enough to show an
intentional act which
caused the peril; rather there had to be a
conscious act of volition (including recklessness) directed to the
running of the risk.'
As authority for this
statement of the law the learned author refers, first, to the
decision in
Marcel Beller Ltd v Hayden
[1978]
QB 694
at 705 C-G that the deceased in that matter could not be said
to have 'deliberately exposed himself to exceptional danger' by
driving
his motor car while having a blood alcohol concentration of
0,26 gram per 100ml. Secondly, reference is made to the case of
Morley and Morley v United Friendly Insurance
plc (supra)
. In the latter case the Court
of Appeal (per Beldam LJ)
inter alia
said the following about the meaning of 'wilful' at 496:
'Thus the meaning to be given to
"wilful exposure to needless peril" in the clause excluding
liability under the policy
requires that the conduct relied on must
go beyond negligent exposure to needless peril. It must be shown
that at the time of
his actions the insured was mindful of a real
risk of the kind of injury for which benefit was provided by the
policy and that
he either intended to run that risk or exposed
himself to it not caring whether he sustained such injury or not.'
[37]
Finally,
the meaning that I ascribe to ‘wilful’ seems to accord
with how our courts understood the term 'wilful' in
a not dissimilar
context in the past. In
Micor Shipping (Pty)
Ltd v Treger Golf and Sports (Pty) Ltd and Another
1977
(2) SA 709
(W), for example, the Court had to interpret a so-called
'owners risk clause' in the contract of a shipping and forwarding
agent
which limited the agent's liability to damage to the goods
which was 'due to the wilful act or default of the company or its
servants'.
Within this context Franklin J stated (at 713 D-E):
'Wilfulness imports the notion of a
deliberate act by the perpetrator who knows what he is doing, intends
what he is doing and is
willing that the consequences of his act or
default should follow.'
(See
also, eg
Citrus Board v South African Railways
and Harbours
1957 (1) SA 198
(A) )
[38]
The
legitimacy of the comparison in the present context with how 'wilful'
is understood in cases such as
Micor Shipping
and
Citrus Board
seems
to find some support in the following statement by Beldam LJ in
Morley and Morley v United Friendly Insurance
(supra)
495:
The word "wilful" used in
similar contexts has been the subject of judicial interpretation for
over 100 years. In conjunction
with the word "misconduct"
it was construed in contracts of carriage by rail where, for example,
the company had excluded
liability except for wilful misconduct of
its servants.
[39]
Counsel
for the insurer, as I understood his argument, did not contend that
the test was any different from the one that I propose.
His premise
was that it was established on the facts that as a result of the
deceased's intoxication an accident was a probability
ie more likely
to happen than not. On that basis it could well be said that the
deceased's decision to drive his motor car knowing
that an accident
was imminent, would have been 'wilful' within the meaning of the
exclusion clause under consideration. But for
the reasons stated by
Schutz JA, that premise was not a valid one.
[40]
With
the above meaning of 'wilful' in mind, it is necessary to determine
whether it can be inferred from the uncontroverted evidence
that the
deceased not only appreciated the danger of an accident in which he
could be maimed or killed as a theoretical possibility,
but as a real
possibility and that he reconciled himself with such an occurrence.
According to the evidence of those who last
saw the deceased when he
left the party at Wolmaranstad, he appeared to be quite 'normal' and
in control of his faculties. He
said goodbye to them and behaved in
a manner which was in no way untoward. They had no reason to doubt
his ability to drive his
motor vehicle home. Then there is also the
evidence of the deceased's wife and his friend to the effect that he
was a man could
'take his liquor' and who regularly drove his car
perfectly competently after consuming alcohol. From this evidence I
infer that
the deceased's attitude was most likely that although he
appreciated that the danger of an accident may have been increased by
his consumption of alcohol, it was not likely to happen; and that, as
in the past, he had a more than even chance of finding his
way home
safely, despite his condition. Schutz JA believes that his
attitude may be described as 'perverse' or 'stubborn'.
That may or
may not be so. What is decisive, however, is that in these
circumstances the inference is not justified that the
deceased had
reconciled himself with the occurrence of the accident as a real
possibility.
[41]
I
consequently find that the insurer had failed to establish the
exemption from liability upon which it relied and that the appellant
is therefore entitled to the benefits provided far in of the policy.
On the papers in the motion proceedings the insurer conceded
that,
in the event of it being held liable in terms of the policy, the
appellant would be entitled to payment in a sum of at least
R366 191,05. During argument in this Court the further
concession was made on behalf of the insurer that the amount of any
judgment in the appellant's favour would bear interest at the rate of
15,5% per annum from 7 March 2001.
[42]
For
these reasons I would order that:
(1) The
appeal be allowed with costs.
(2) The order of the Court
a quo
be set aside and that the following order be substituted for it:
'(a) Judgment is granted in favour of the applicant in
the sum of R366 191,05.
(b) The respondent is ordered to pay interest on the
said amount at the rate of 15,5% per annum from 7 March 2001 to date
of payment.
(c) The respondent is ordered to pay the applicant's
costs of suit.'
FDJ BRAND
JUDGE
OF APPEAL
CONCUR
:
NIENABER
JA
HEHER
AJA
HEHER
AJA:
I
have read the judgments of Schutz JA and Brand JA and agree with the
judgment of Schutz JA.
[43]
I think it is necessary to give a meaning to the phrase 'wilful
exposure to danger' that is businesslike having regard to the
context
in which it is found, by which I intend a meaning that both the
prospective insured and the insurer must have regarded
as meeting
their aims in concluding the policy. It is in this context that I
agree with Schutz JA that the meaning to be attributed
to 'wilful'
introduces a pejorative element in relation to exposures to danger
that are not covered. Indeed, though the suggestion
regarding the
extended meaning of 'wilful' came from the Bench, counsel for the
insurer adopted it, rightly in my view.
[44]
As I shall attempt to demonstrate, it is not possible to give the
words 'exposure to danger' an unqualified meaning. To do so
would
be, if not absurd, at least in obvious conflict with a businesslike
interpretation. This is implicitly recognised by Brand
JA in para
[31] of his judgment but he does not follow this through by applying
it to the 'danger' to which the exception refers.
Instead he tries
to meet the problem later by limiting the concept of wilfulness to
eventualities which are 'real possibilities'.
For the reasons that
follow this seems to me a flawed solution.
[45]
According to common experience I may expose myself to a greater or
lesser degree to danger of death or disablement in a multiplicity
of
ways every day: driving a motor vehicle, crossing a street, entering
a lift, undergoing radiotherapy. Each is a question of
degree: one
may drive slowly or fast; the street may be silent or a hive of
activity; the lift may be new or antiquated; the radiography
may
happen once or be repeated several times. On each occasion I venture
deliberately with my eyes open to the hazards. But no
one would
suggest that such conduct is, in the pejorative sense, 'wilful', and
neither party to the insurance contract would have
supposed that such
venturing would bring the exception into operation. (For the same
reason, conduct in an effort to save human
life would never be
stigmatised as 'unlawful'.) This is not because the risks are not
real and the potential consequences are
not catastrophic, but because
they would require that the policy be interpreted reasonably.
[46]
So understood, the exposure must be to a danger that is not one
faced by the insured going about the day to day business of life
in a
reasonable manner. A man who drives his vehicle at a high speed on a
busy road exposes himself to danger; so does one who
crosses such a
road against the traffic lights. Both act unreasonably.
[47]
But the exposure to danger must be wilful before the cover is
excluded. I have no doubt that what the parties intended is that
the
insured must enter upon the relevant act or omission appreciating
that his conduct (i) is unreasonable, and (ii) will lay him
open to
the risk of death or disablement. On this interpretation it is
artificial to say, as Brand JA does, that the required
wilfulness is
not directed to the activity that causes the danger. In my view the
activity and the danger are inseparable. The
enquiry is about the
insured's subjective state of mind but like all such enquiries his
own utterances can be tested against the
objective facts or, in the
absence of such utterances, the objective facts alone can be analysed
to arrive at the most probable
inference as to what passed through
the insured's mind before and during the conduct that is in question.
The passage from Halsbury
cited by Brand JA in para [7] of his
judgment must be read with this qualification in mind.
[48]
Does it matter that the chance of death or disablement is present to
his mind as a probability or is a mere possibility (with
the whole
range that that implies)? I think not. First, the controlling factor
is the reasonableness of his conduct, a standard
that builds in all
relevant considerations and excludes the need for raising one (such
as the degree of likelihood of harm) to
the level of decisiveness.
Secondly, the plain words 'wilful exposure to danger' give no
indication that the degree of likelihood
of the risk eventuating is
to be the determining factor. Commonsense demonstrates that it
cannot be so. A simple example will
suffice. I plan to drive my
powerful new car at speeds of up to 250 km per hour over a straight
stretch of 12 kilometres of national
highway through the Karoo. I am
an experienced and competent driver. I know that there is likely to
be other traffic in both
directions on the road and that other
drivers may not be as predictable or controlled as I believe myself
to be. I am also conscious
of the reality that tyres, even when new,
can burst for reasons beyond my control, and that game and sheep do
stray unexpectedly
through gates and fences. Despite all these not
insubstantial risks, the probability (judged both subjectively and
objectively)
is that I will manage to come through unscathed.
Nevertheless it cannot be seriously suggested that when I embark on
my joyride
I do not wilfully expose myself to danger within the
meaning of the policy. I knowingly behave in a manner which is
wholly unreasonable
having regard to the seriousness of the potential
consequences, the absence of any compulsion to travel in the
contemplated manner,
my complete inability to control the actions of
others, my uncertainty about the reliability of my own vehicle, and,
no doubt,
other reasons also. In the overall evaluation the degree
of risk is unimportant. The fact is that while some risk exists (and
it can never be excluded) no reasonable person would embark on such a
venture. In my view if the insurer and insured had been
asked
whether this hypothetical case falls within the terms of the
exception both would unhesitatingly have replied 'yes'. Deliberately
overtaking on a blind rise over a solid barrier line on a quiet road
affords another example. It cannot be said in any given
instance
that there is a probability or even always 'a real possibility' of a
collision, but commonsense tells one that a driver
who does that
wilfully exposes himself (and others) to danger. These examples show
that conduct that falls within the exception
will always be 'governed
by will without regard to reason' (ie the first sense conveying an
element of perverseness).
[49]
When Brand JA (in para [6]) draws an analogy
between the requisites of 'wilfulness' as propounded by him and
dolus
eventualis
I think, with respect, that he
errs. There is a long line of authority that makes it clear that if
an accused foresees a consequence
of his actions as a possibility he
can be held liable according to the doctrine of
dolus
eventualis
. The cases are discussed in
Snyman,
Strafreg
4
uitg 179 - 81. It is unnecessary to list them. In
Nicolaisen
v Permanente Lewensversekeringsmaatskappy
1976(3) SA 705 (C) at 709 F, Van Winsen J applied the doctrine to the
facts before him with the following introductory words:
"
Dit
is deur mnr.
Olivier
, wat namens eiser opgetree het, aangevoer
dat die versekerde, alhoewel bewus van die feit dat die rewolwer
gelaai is, kon gemeen
het dat toe hy die trekker vir die derde maal
getrek het die patroon nie onder die hamer sou kom nie. Was dit sy
houding sou dit
na my mening bewys lewer van die bestaan by hom van
ten minste
dolus eventualis
. Dit sou bewys wees van 'n
roekelose volharding aan sy kant in 'n gedragspatroon wat hy voorsien
het by die derde trek van die
trekker moontlik tot sy dood aanleiding
kon gee
."
There
is however great divergence as to the strength of the possibility
which is sufficient: Snyman
op cit
at 180 fn 155. In
S v Beukes en 'n Ander
1988(1) SA 511 (A), upon which Brand JA relies, Van Heerden JA
expressed a clear preference for a reasonable possibility (at 522
C -
I). The expression 'real possibility' is in itself confusing and I
would not wish to associate myself with it. In any event,
given the
particular wording of the contract with which we are concerned I
think that the analogy with
dolus eventualis
is unnecessary and, probably, of doubtful value.
[50]
Schutz JA has set out the facts which are relevant to the night in
question and the inferences as to the state of the deceased's
mind
before and when he made the fatal decision to make a start for home
rather than deferring the journey until the morning.
I agree
entirely with his inferential assessment of what must have occurred
to the deceased. On those facts the deceased appreciated
the
unreasonableness of driving as he then proceeded to do and the perils
attendant on so doing but despite that he was not deterred.
[51]
I agree that the appeal should be dismissed.
____________________
J
A HEHER
ACTING
JUDGE OF APPEAL
SCHUTZ JA )Concur
CAMERON JA )