Wells v Shield Insurance


Wells and Another v Shield Insurance Co Ltd and Others is an important case in the South African law of delict. It was heard in the Cape Provincial Division by Corbett J on March 15, 1965, with judgment handed down on April 7. The attorneys of the excipient, who was represented in court by DL Kooy, SC, were Reilly, Reilly & Tucker. The respondent's attorneys were Sonnenberg, Hoffman & Galombik, and he was represented by S. Aaron.
The case involved an exception to a declaration, and turned on the question of the meaning and effect of section 11 of the Motor Vehicle Insurance Act, in particular the meaning of the word "Driving". The court determined that, when the driver of a car opens its door after parking it, he has not perpetrated an act "caused by nor arising out of" the driving of the car.

Facts

After the third defendant had manoeuvred his car into a parking bay, switched off his engine and applied the hand-brake, he had reached behind him to remove an article from the back seat, and then opened the door preparatory to alighting. At this moment, a trackless tram struck the door, which protruded into its path, causing it to crash into another motorcar, and thus to injure the plaintiff and his wife. To a summons and declaration claiming damages from the insurer of the tram, the insurer of third defendant's car and the third defendant, the second defendant had excepted on the ground that the plaintiffs' injuries had neither been "caused by" nor "arisen out of" the third defendant's driving of the car within the meaning of section 11 of the Motor Vehicle Insurance Act.

Judgment

In order to give a wider application than the phrase "caused by" to the phrase "arising
out of", Corbett J held that it must be regarded, as it appeared in section 11 of the Act, as covering cases where the driving is an indirect cause of the infliction of the injury. Where the direct cause is some antecedent or ancillary act, then it could not normally be said that the death or injury was "caused by" the driving, but it might be found to "arise out of" the driving. Whether this would be found would depend upon the particular facts of the case and whether, "applying ordinary, common-sense standards," it could be said that the causal connection between the death or injury and the driving was sufficiently real and close to enable the court to say that the death or injury did in fact arise out of the driving. The word "driving," as used in relation to the insured motor vehicle, means "ordinarily the urging on, directing the course and general control of the vehicle while in motion and all other acts reasonably or necessarily incidental thereto."
Corbett J held, as against the second defendant, that the plaintiffs' injuries had not been caused by, nor had they arisen out of, the driving of the insured vehicle; accordingly, the exception was upheld with costs.

Books

Cases

Atlantic Coast Line Railway Company v Daniels 8 Ga. App. 775.Barkett v SA Mutual Trust & Assurance Co. Ltd. 1951 SA 353.Hulett v Commissioner for Inland Revenue 1944 NPD 263.Jacobs v Auto Protection Insurance Co. Ltd. 1964 SA 690 ).Leemhuis and Sons v Havenga 1938 TPD 524.Minister of Pensions v Chennell 2 All ER 719.Oosthuizen v London and Lancashire Insurance Co. Ltd. 1956 SA 319.Petersen v SANTAM Insurance Co. Ltd. 1961 SA 205.Philander v Alliance Assurance Co. Ltd. 1963 SA 561.Pillai and Another v New India Assurance Co. Ltd. 1961 SA 70.Pretoria City Council v Auto Protection Insurance Co. Ltd. 1963 SA 136.R v Standard Tea and Coffee Co. (Pty.) Ltd. and Another 1951 SA 412.Wellworths Bazaars Ltd v Chandler's Ltd. and Another 1947 SA 37.Workmen's Compensation Commissioner v SANTAM Beperk 1949 SA 732.

Statutes

  • Motor Vehicle Insurance Act 29 of 1942.