In this recent High Court judgment, the insurance policy under consideration contained a pollution exclusion with the proviso that the exclusion did not apply where the pollution was caused by a “sudden, unintended and unexpected happening” during the period of the insurance.

It was common cause that the contamination of the third party’s land was caused by the escape of fuel from the insured’s pipeline by way of an incision which was deliberately controlled by thieves causing the discharge of the fuel to happen over an extended period.

The court adopted the approach of the court in African Products (Pty) Limited v AIG South Africa (Pty) Limited [2009] 4 ALL SA 99 (SCA)  holding that, in the context, the word “sudden” should be understood in its temporal sense meaning “abrupt” or “occurring quickly” or “taking place all at once.”

The insured’s argument that “sudden” ought to be understood to mean that the seepage did not happen as a result or wear and tear such as corrosion of the pipeline was rejected. 

The court said that any loss resulted from seepage that caused pollution, not the actual (sudden) puncturing of the pipeline.  The escape of the fuel was gradual as was the seepage so any indemnity was excluded.