This is a strange judgment from the Pretoria High Court. 

The insured sought an order that the insurer pay the alleged value of his motor vehicle, after it had allegedly been written off in an accident.

The court noted that the insurer had “repudiated his claim due to non-disclosure of material information at the inception of the agreement.”  The judgment does not however contain any reference to avoidance of the policy by reason of material non-disclosure, nor to a policy term entitling the insurer to repudiate the claim in those circumstances.

The insured gave evidence that he had never been involved in an accident before taking out insurance with the defendant insurer, and that he had never claimed for any accidents.

But in cross-examination, he conceded that he was involved in two incidents in 2014.  The first involved his windscreen being chipped by a stone.  He had claimed from his then-insurer but did not proceed with the claim.  The second incident involved a cyclist and resulted in the glass from one of his vehicle’s side mirrors popping out.  He again claimed from his then-insurer, but again did not pursue it.

The insured did not inform the defendant insurer of these incidents during a 2017 sales call, and conceded during the trial that a reasonable person would understand that information relating to these previous incidents was required for the defendant insurer to assess the risk properly.  He also conceded that had the information been available when the policy was concluded, he would have paid a higher premium. 

The defendant insurer closed its case without leading any evidence.

The judgment reaffirms that the onus was on the insured to prove the facts necessary to bring the claim within the terms of the insurance policy, and that the insured had failed to do so.  There was accordingly no case for the defendant insurer to meet:

“The plaintiff in my view failed to prove that any facts existed for a claim of indemnity in terms of the insurance policy.  The plaintiff only testified that there was an accident “in August 2017, the car I insured was involved in an accident.”  During cross-examination he was remind that there was a dispute as to whether an accident had occurred and the damages and quantum he claimed.  Plaintiff did not respond to the issues in dispute and as a result no evidence was presented before the court of the actual accident and the damages suffered.  In my view the plaintiff failed to prove facts necessary to bring his claim within the terms of the insurance contract and the defendant thus never attracted an onus.  There was just no case for the defendant to meet.”

Nevertheless, in a final confused paragraph, the court dealt with non-disclosure and said:

“The defendant in avoiding the claim had to prove that the non-disclosure of the previous incidents was material to the assessment of the plaintiff’s risk to show that the repudiation was good.  Turning to the matter before me, the plaintiff conceded (i) that the facts were material, that is a reasonable man in the position of the insured would have considered the nondisclosed fact as being reasonably relevant for a proper assessment of the risk and premium; (iv) that the non-disclosed fact caused the party to either enter into the contract at all or on the agreed terms, through admissions and during cross examination.  In my view that is the end of the matter, and the defendant correctly repudiated the claim.”

If anything, the judgment illustrates, by default, how not to prosecute an insurance claim.