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South Africa: Supreme Court of Appeal |
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OF SOUTH AFRICA
REPORTABLE
ANNA MARIA MAGDALENA VAN ZYL NO Appellant
and
OF LONDON Respondent
________________________________________________________________________
CORAM: NIENABER, SCHUTZ CAMERON, BRAND JJA et HEHER AJA
________________________________________________________________________
Date Heard: 30 August 2002
Delivered: 26 September 2002
________________________________________________________________________
________________________________________________________________________
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
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