The High Court in Pretoria has ordered Guardrisk Insurance Company to pay a Ferrari owner R1.82 million, plus punitive costs, after it repudiated the owner’s insurance claim on the basis that the car was being driven recklessly in rainy weather.
Judge Anthony Millar made the costs order because the plaintiff “ought never to have been forced to court on the basis that he was”.
He said it was “patent” that the investigator appointed by Guardrisk “was not an expert in the field that he claimed to be, and that his opinion was never going to withstand the scrutiny of interrogation in court”.
The court’s decision in favour of the plaintiff (policyholder) highlights that insurers that decline a claim on ground that the policyholder breached a “reasonable precautions” clause need to be satisfied that the evidence is sufficient to discharge what the courts see as a heavy onus on insurers to prove recklessness.
Excessive speed in rainy weather, says Guardrisk
On the evening of 22 February 2019, and in rainy weather, Sashin Govender and his mother, while driving along William Nicol Road in Fourways, Johannesburg, were involved in a collision. Govender lost control of the vehicle, and it collided with a lamp pole on the island separating the north-bound from the south-bound lanes.
Neither Govender nor his mother suffered any serious injuries. However, his red Ferrari California was damaged beyond repair.
After an investigation, Guardrisk repudiated liability under the policy. When the matter came to trial, the single issue upon which the repudiation was based was that Govender had failed to “take all reasonable precautions to prevent loss, damage, accidents” as required by the general terms and conditions of the policy.
According to the judgment, the repudiation was predicated upon Guardrisk’s view that Govender had been travelling at an excessive speed in rainy weather, and this had been so excessive that he was regarded as having been reckless, thereby breaching a clause in the general terms and conditions.
The excessive speed at which Govender was said to have been travelling at was 135km/h, which was allegedly determined by an expert engaged by Guardrisk.
Govender testified that he was travelling at about 80km/h when his vehicle suddenly pulled to the left. He had instinctively corrected by steering to the right and had lost control of the vehicle when it started to spin. The vehicle spun a number of times and eventually came to a stop.
Govender testified that he did not know what had caused the vehicle to pull to the left and assumed it had been water on the road because of the rain. He thought he had hit a “puddle” in the road.
His evidence was corroborated by that of his mother insofar as the inclement weather and his driving in a reasonable and safe manner was concerned.
A Guardrisk assessor, a Mr Giezing, interviewed Govender a few weeks after the collision. According to Giezing’s report, Govender told him that he had been travelling at about 100km/h.
Govender conceded that he might have told Giezing that he was driving at about 100km/h but was adamant that he was not driving at 135km/h.
Evidence from Guardrisk’s expert
Giezing testified that the extent of the damage to the Ferrari was a factor that led him to recommend that a Mr van der Merwe be appointed to investigate the speed of the vehicle. To this end, he arranged with Govender for the vehicle’s “black boxes” to be made available to Van der Merwe for examination.
These boxes are computer modules that record real-time data relating to the performance of the vehicle, speed, and other technical data.
One of the boxes was irreparably damaged and of no value. However, the other was undamaged and was handed to Van der Merwe.
However, Van der Merwe was unable to access the data in the black box. Apparently, only the manufacturer can access the data, and Ferrari was unwilling to assist.
Judge Millar said Van der Merwe did not have any black box data, but nonetheless proceeded to prepare a calculation predicated entirely upon the “tensile strength” of the material from which the Ferrari was manufactured. Using this approach, he concluded that Govender had been driving at 135km/h.
Evidence from Govender’s expert
Govender’s expert witness, a Mr Grobbelaar, testified that on the objective evidence available, it was not possible for him to express an opinion that Govender was not driving at 80km/hr or was driving at a speed above that.
He testified it was likely that water was flowing across the road, from the left-hand side to the right-hand side, at the time of the collision.
Grobbelaar said that he and Van der Merwe both agreed that the effect of water on the surface of the road, even in small amounts, could cause hydro- or aquaplaning. In Grobbelaar’s view, this was the probable cause for Govender’s losing control of his vehicle.
In his evidence on the damage to the vehicle, Grobbelaar indicated that although he had asked Van der Merwe to disclose the basis upon which he had calculated the tensile strength of the metal in the Ferrari, the latter had not done so. Various reasons were given, such as that Van der Merwe’s computer records had become irrecoverable.
Judge Millar said that during Grobbelaar’s evidence, counsel for Guardrisk was able to consult with Van der Merwe, who was also present in court.
“The court was informed from the bar that no part of the plaintiff’s Ferrari had been examined or tested to determine tensile strength. Mr van der Merwe had used a European Union standard measurement which apparently derived from the testing of wheel rims by Mercedes Benz AG in Germany,” he said.
“The court enquired from counsel for the defendant whether or not the wheel rims were made of the same material as the Ferrari or whether they had been manufactured in Italy. Mr van der Merwe was unable to provide an answer. In consequence of this exchange, the defendant indicated that it would no longer be calling Mr van der Merwe as an expert.”
Onus not discharged
Judge Millar said it is well accepted that, “The proposition that a motorist should drive at a speed at which he is able to stop within the range of his vision has never been seriously challenged, and the case for the recognition of this rule remains unanswered.”
He asked whether it was foreseeable that there would be sufficient water on the road surface to cause aquaplaning. “The evidence of the plaintiff was that he did not see it. He thought he had driven into a puddle. The evidence established that there was no puddle. The probabilities overwhelmingly favour water running across the road from the left to the right.”
The parties agreed that Guardrisk bore the onus of establishing on a balance of probabilities that Govender was reckless in the circumstances.
Judge Millar said there was no evidence before the court to establish that notwithstanding the rainy weather, Govender knew or foresaw that the road conditions could cause him to lose control of the vehicle.
“Having regard to the particular facts in this case, there is to my mind no question that the plaintiff did not act recklessly. The defendant failed to discharge the onus upon it and the plaintiff is entitled to judgment.”
Reasons for the cost order
Govender requested a punitive order for costs against Guardrisk.
Judge Millar said that ordinarily where expert witnesses disagree and the court prefers the evidence of one over the other in determining the dispute, this is not warranted.
However, he said Guardrisk’s entire case hinged upon Van der Merwe’s opinion. Govender was “put to the trouble” of briefing an expert witness who was unable to elicit from Guardrisk’s expert witness the very basis upon which his opinion had been formulated.
“In consequence of the opinion of Mr van der Merwe, the plaintiff’s legal team and Mr Grobbelaar were put to the unnecessary effort of trying to elicit the reasons for the opinion. The matters upon which both Mr Grobbelaar and the legal team were thus required to prepare on are far more complex and would have been commensurately more time-consuming than one would ordinarily have expected in a case of this nature. These costs were, to my mind, entirely avoidable,” he said.
Judge Millar ordered Guardrisk to pay Govender R1 827 500, plus interest of 10.75% a year from 30 August 2019 to the date of payment.
In addition, Guardrisk was ordered to pay Govender’s taxed or agreed costs of the action to date on the attorney-client scale, including the costs of counsel and two expert witnesses, Grobbelaar and a Mr Moss.
The costs of the experts must include the cost of their attendance at court for the trial but not be limited to the costs recoverable in terms of section 4 of the tariff applicable to witnesses in civil matters as set out in Government Gazette 30953 of 11 April 2008.
Sector 4 states: “The court manager or a registrar may, on satisfactory proof having been produced that a witness has forfeited income as a result of his or her attendance of a criminal case, in addition to the allowance that may be payable to the witness in terms of regulation 2, order the payment of an allowance equal to the actual amount of income so forfeited, subject to a maximum of R1 500 per day.”
