Class notes
LML4805 - Insurance Cases (Summarised)
- Institution
- University Of South Africa (Unisa)
Over 20 Cases for Insurance Law. All cases are summarised.
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Cases (Summary)
INSURANCE LAW CASE PACK:
The Casebook contains the following cases:
(1) Littlejohn v Norwich Union Fire Insurance Society 1905 TH 374
(2) Ackerman v Loubser 1918 OPD 31
(3) Nafte v Atlas Assurance Co Ltd 1924 WLD 239
(4) Kliptown Clothing Industries (Pty) Ltd v Marine and Trade
Insurance Co of SA Ltd 1961(1) SA 103 (A)
(5) Dicks v South African Mutual Fire and General Insurance Co Ltd
1963 (4) SA 501 (N)
(6) Lake and Others NNO v Reinsurance Corporation Ltd and Others
1967 (3) SA 124 (W)
(7) Jordan v New Zealand Insurance Co Ltd 1968 (2) SA 238 (EC)
(8) Phillips v General Accident Insurance Co (SA) Ltd 1983 (4) SA 652
(W)
(9) Mutual and Federal Insurance Co Ltd v Oudtshoorn Municipality
1985 (1) SA 418 (A)
(10) Steyn v AA Onderlinge Assuransie Assosiasie Bpk 1985 (4) SA 7
(T)
(11) President Versekeringsmaatskappy Bpk v Trust Bank van Afrika
Bpk & 'n Ander 1989 (1) SA 208 (A)
(12) Pillay v South African National Life Assurance Co Ltd 1991 (1) SA
363 (D)
(13) Otto v Santam Versekering Bpk & 'n Ander 1992 (3) SA 615 (O)
(14) Qilingele v South African Mutual Life Assurance Society 1993 (1)
SA 69 (A).
(15) South African Eagle Insurance Co Ltd v Norman Welthagen (Pty)
Ltd 1994 (2) SA 122 (A)
(16) Napier v Collett & Another 1995 (3) SA 140 (A)
(17) Refrigerated Trucking (Pty) Ltd v Zive NO (Aegis Insurance Co Ltd,
Third Party) 1996 (2) SA 361 (T)
(18) Stander v Raubenheimer 1996 (2) SA 670 (O)
(19) Manderson t/a Hillcrest Electrical v Standard General Insurance
Co Ltd 1996 (3) SA 434 (D)
(20) Clifford v Commercial Union Insurance Co of South Africa Ltd
1998 (4) SA 150 (SCA)
(21) D’Ambrosi v Bane & Others 2006 (5) SA 121 (C)
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Refrigerated Trucking (Pty) Ltd v Zive NO:
Q: in the motor vehicle insurance policy – clause-extending
indemnity to permitted drivers – insurable interest:
Facts:
The plaintiff was the owner of a truck involved in a collision with a car
driven by Z (the deceased). The defendant (the executor of the
deceased estate) admitted, with the consent of the 3rd party (A Ltd)
that the deceased had been 90% negligent and that the plaintiff’s
damages amounted to R441 00 plus costs.
A Ltd, an insurance company was joined as a 3rd party by the
defendant on the ground that if it was found that the defendant was
liable to compensate the plaintiff for damages, he would be entitled to
indemnification from the insurance company in terms of the
insurance policy, issued in favour of the deceased.
At the time of the accident the car driven by the deceased was insured
with I Ltd in terms of a motor vehicle insurance policy in favour of G
(Pty) Ltd. The deceased had been driving the car with the permission
of G. A claim by G in respect of the policy was met by I.
The policy was a personal insurance package covering various risks,
including the driving of a car not belonging to the insured.
A clause in the contract stated – if there was other insurance covering
the same liability, loss or damage they wouldn’t pay more than their
ratable share.
The insurance policy contained an extension clause which provided
that the insured would be indemnified in respect of damage to
property other than property belonging to the insured = insurer would
indemnify any person who was driving the vehicle on the insured’s
order or with their permission PROVIDED he wasn’t entitled to
indemnity under another policy.
So it appears – each of the insurers could avoid liability on the basis
of the existence of the other policy.
Counsel: states that A and I were both 50% liable.
It is accepted law that where 2 policies were each intended to give
secondary cover to an insured, the qualifications cancelled each other
out and both insurers were liable = ratable proportion.
If the deceased had been doubly insured = defendant can’t claim more
than its ratable share from each insurer.
As I Ltd wasn’t before the court – if it was found that the deceased was
also covered by I, the defendant could only get 50% from the plaintiff.
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BUT if it’s found that he wasn’t covered by I, A would be obliged to
indemnify the defendant for the full amount.
The damage concerned was damage to a car belonging to a 3rd party
and if the extension clause was enforceable the damage suffered by
the plaintiff = damage to property other than property belonging to the
insured. (In terms of I policy)
Q: whether the insured had an insurable interest – economic interest
which related to a risk which a person ran in respect of a thing, which
if destroyed would cause him to suffer economic loss – it didn’t matter
if he personally didn’t have a right in respect of the thing.
The owner of the car had an insurable interest in the liability of the
drivers who drove the cars with his permission.
Q: whether the extension clause gave enforceable benefits on 3rd
parties such as the plaintiff:
The owner would want to be insured to the full extent to which his
family members or friends might be held liable to the 3rd party and
also to the full extent to which he might be held vicariously
responsible to 3rd parties and to see to it that this result is achieved,
the insurer had to indemnify the driver.
Rights, which accrued, accrued to the driver but he had no locus
standi to enforce them. If the insured elected to exercise those
rights he was fully covered, but if he failed to do so, there was
nothing he could do to enforce them.
Although indemnity in I policy was to the full extent of the drivers
liability, it didn’t create a right for the driver to accept the benefit
which the insured stipulated for = no right to claim. The insured must
claim on behalf of such a person.
NO ground on which the driver could compel the insured to claim on
his behalf – driver had no enforceable rights against the insurer until
the insured intervened.
In A policy, the deceased was indemnified in so far as the vehicle
wasn’t otherwise insured – the deceased was fully covered but for
cover in respect of the car which the deceased could enforce in his
favour, that G didn’t intervene on behalf of the deceased, that the
deceased estate couldn’t compel to intervene, that the result that the
vehicle wasn’t otherwise enforceable insured in favour of the deceased,
that if G was at a later stage to intervene on behalf of the deceased
estate and create an enforceable right for it – I would be able to rely on
the fact that the deceased was doubly insured and would not be liable
for more than its ratable share.
Held: The defendant had to pay the amount of R441 000 and
interest top the plaintiff in respect of the amount of judgment,
interest and costs.
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