Did the insured motorist collide with a pig and if so, did he intend to hit the pig or was it a reckless act?
This was the central question the Australian court resolved in considering whether there had been a breach of the reasonable precautions condition of the policy.
The reasonable precautions clause read:
“You must take all reasonable precautions to prevent anything which could result in a claim under this policy (the Reasonable Precautions Condition).
You must obey, and must use reasonable endeavours to make sure that anyone doing anything on Your behalf obeys, all relevant laws (the Legality Condition)”
The court reviewed the law on the taking of reasonable precautions approving of the Barry Toepfer Earthmoving and Land Management v CGU judgment which held:
“In this context the notion of deliberately courting danger involves the taking of measures which are known to be an inadequate response to the recognised danger, or not taking any measures at all when it is appreciated that the taking of some measure is required. An insurer bearing the onus of establishing noncompliance with an obligation to take reasonable precautions must prove that the insured has not taken such measures as it thinks are reasonable having regard to the danger which is recognised: Eather at 407 (per McHugh JA).”
On the contemporaneous documentation and video evidence the court was “comfortably satisfied that the vehicle did in fact strike the pig”. In considering whether hitting the wild pig was deliberate or simply reckless the court was entertained by the evidence before it:
“Q. Right. I want to put four propositions to you about your conduct that we’ve seen in the video. You were chasing the pigs, weren’t you?
A. Yes. We were driving after the pigs.
Q. And you accelerated and turned left to chase one pig, didn’t you?
…
Q. You were chasing pigs, Mr Streeter, at the time, weren’t you?”
And concluded:
“The question of whether he did so deliberately is not an easy one to determine. I take into account however the description in earlier text messages of “nuking” pigs and the excited tone of voice of both vehicle occupants, which demonstrates that they were out on a pig “kill” which in the case of Mr Streeter involved more than mere reckless driving.
If I have erred in finding that Mr Streeter was intending to hit the pig deliberately, whether he did so or not, I would alternatively find that he drove the vehicle recklessly in circumstances where the vehicle was unsafe, particularly at night, after rain, over uneven terrain and where there were feral animals about.”
In the circumstances the insured was in breach of the reasonable precautions condition of the policy.
The outcome would be no different under South African law.
The judgment is a cornucopia of insurance law (lovers of insurance law will be as happy as a pig in muck) in its additional consideration of the meaning of the terms “arising out of” and “in connection with”, and findings on the application of the Firearms Exclusion in the policy, and regarding a fraudulent claim.