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REPORTABLE
CASE NO: 216/2001
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
In the matter between:
A M M VAN ZYL NO APPELLANT
and
KILN NON-MARINE SYNDICATE NO 510
OF LLOYDS OF LONDON RESPONDENT
CORAM: NIENABER, SCHUTZ, CAMERON, BRAND JJA and HEHER AJA
DATE OF HEARING: 30 AUGUST 2002
DELIVERY DATE: 26 SEPTEMBER 2002
___________________________________________________________________
JUDGMENT
___________________________________________________________________
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 )
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