Midlands State University
Faculty of Commerce
Department of Insurance & Risk Management
Module
:
Liability Insurance IRM 403
Lecturer
:
S. Masiyiwa
“Good advice is precious”
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CHAPTER 1
SOURCES OF LIABILITY
1. Introduction
Every person has a common law obligation not to harm the property and rights of others (ex-delictu). This
duty might arise out of a special agreement between wrongdoer and the victim (ex-contractu. This is
illustrated in case of Donoghue v Stevenson (1928). Mrs Donoghue suffered shock and gastric complaint
after drinking bottled beer that turned to have contained a dead snail. She did buy the drink herself (her
friend paid for it) so she had no contractual obligations with manufacturer, Stevenson. At that time (1928)
the manufacturer owed a duty of care only to purchasers, not to consumers. Mrs Donoghue’s lawyer used
the case to challenge existing law. After some protracted legal proceedings, the House of Lords (the court
of appeal in UK) ruled that a duty of care was also owed to consumers and Mrs Donoghue was entitled to
recover damages. The court was subsequently settled out of court. This case led to the development in the
concept of products liability as we know it today.
From the above it can be deduced that liability arises from contract and delict. These are discussed below:
1.1 Contract
A contract is an agreement between two or more people which creates or is intended to create legal
obligations between the parties thereto. The parties become legally liable to each other and if any party
breaches this legal duty he becomes contractual liable. Under the doctrine of privity, contractual actions can
be brought only by the parties to the contract, for example:
(a) Liability under contract is assumed voluntarily
(b) From a liability insurer’s point of view, contractual agreements are excluded, unless liability would have
attached notwithstanding such agreement. For instance, a lease agreement might make the tenant
responsible for loss or damage to the property, its fixtures and firings. The tenant is responsible for any loss
or damage at common law.
(c) Liability assumed under insurance policies so that insurers cannot afford to ignore contractual conditions
entirely.
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1.2 Delict
A delict is a civil wrong for which damages can be claimed as compensation and for which redress is not
usually dependent on a prior contractual undertaking to refrain from causing harm. Every person owes the
society the duty not to cause harm to others and their property.
A delictual action can be brought by anyone who has suffered harm through a breach of the general duty
not to harm others i.e. in person, to their property or personality.
1.2.1 Special features of delictual action:
-
There is no need for contractual relationship between the parties
-
Many claimants can be involved e.g. Bhopal India, 1983.
-
Delictual duty arises involuntarily
Examples
(a) A surgeon performs a laparotomy on a patient in terms of a contract. If he negligently leaves a swab in
the patient’s abdomen, the patient can sue him in contract or in delict.
(b) A garage fails to examine a car’s steering mechanism or report the defect to the owner who is then
involved in an accident with a third party. Courts have held garages delictually liable on the basis of the
garage’s contractual duty to inform the owner of a defect in his vehicle (Blore v Standard General Ins 1972
(2) SA89 (0)).
1.2.2 Elements of a delict
(a)
Wrongful conduct
Conduct is defined as a voluntary human act or omission. This also includes acts of juristic person e.g.
companies.
-
For liability to attach, some harm/prejudice must be caused in a legally reprehensible and
unreasonable manner.
-
Without wrongfulness, a defendant may not be held liable
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-
One cannot prove wrongfulness, but can prove facts which the court can use to conclude that the
defendant acted wrongfully.
-
Can be a positive act (intentional) or an omission to act (negligence). The general rule is that the
person does not deliberately act unlawfully by merely failing to prevent damage or bodily injury to another.
Liability follows only if the failure was lawful – i.e. if under the circumstances, there was a legal duty to act
to prevent the damage.
(b) Fault
The loss must be attributed to fault on the part of the defendant and whether this is intentional or negligent.
(c)
Causation
There must be a relationship (causal nexus) between the defendant’s act or omission and the harm or
injury suffered by plaintiff.
(i)
Factual causation
The courts will initially ask whether the harm would have occurred even if the defendant had not acted in
the way he did. If the harm would have occurred the defendant’s act is taken as a contributing factor.
Causation depends on the facts of the particular matter.
(ii) Legal causation or remoteness of damage
Once the initial enquiry is answered, the courts will consider whether the harm caused is loosely linked with
the defendant’s act or whether there causal link is too remote.
(d)
Loss / harm
There must be some loss or damage (loss of property or some injury) for which the law makes
compensation available. The type of harm suffered determines the natures of the legal action.
1.3 Injury to property (Patrimonial loss)
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Patrimony is taken to mean everything a person possesses, and is not limited to things that can be seen
and includes:
-
Physical damage to property and reduction to the value of that property
-
Something that prevents the estate from increasing, e.g. loss of production as a result of the event
-
Medical expenses
-
Loss of earnings
The remedy for patrimonial loss is the Aquilian action whose foundation is in Roman law.
1.4 Injury to personality (Defamation, Injuria)
For liability to attach it must be shown that personality rights were infringed.
Defamation is the intentional infringement of another person’s right to his/her good name as might happen
by publishing falsehoods against him/her. Publishing is not only limited to use of newspapers or periodicals
but includes making it known to a third party other than spouse.
Injuria is an intentional infringement of a personality right, e.g. by swearing at someone or calling him/her
names.
The remedy is the Actio iniuriarum, which has the object of reparation for lowering the plaintiff’s esteem in
the community or causing feelings of injustice, injury and suffering to the plaintiff.
There is no formula for the determination of the monetary award payable to plaintiff. The courts will only
consider the degree of intent and use its discretion in placing some monetary value on the harm suffered.
1.5 Physical injury
Every action which harms another person and satisfies the elements for delictual liability is also a delict. The
victim has the option of laying a criminal charge, e.g. assault and/or suing the assailant for damages.
Every factual infringement of a person’s physique or psyche violates his/her corpus.
Physical injury may occur with or without violence with or without pain, but must not be of trivial nature.
The action for pain and suffering includes:
-
Disfigurement
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-
Mental injury
-
Emotional shock
-
Shortened life expectancy
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Loss of amenities of life and health
-
Physical and mental suffering
Although no amount of money can adequately compensate for pain and suffering, our law accords the victim
a monetary award as compensation. It has been argued at the courts that every person is entitled to live
free from pain and in enjoyment of those pleasures in life which accrue to the possessor of a health mind
and body. If through the wrongful conduct of another, the person loses these advantages, the law affords
him/her the comfort which is assumed to flow from being in possession of a sum of money derived from an
award of damages given against the wrongdoer,(Hoffa No v SA
Mutual Fire and General Insurance Company Ltd 1956 2 SA (C)).
1.6 Dependant’s action
The dependant of a person killed in wrongful or culpable manner may claim damages from the wrongdoer for
loss support. The killing infringes the dependant’s personal right of support by the breadwinner and his
action is not affected by contributory negligence or special agreements by the breadwinner e.g. that the
deceased had accepted the risk of being killed or had realised the wrongdoer from liability.
1.7 Strict liability
Some statutory and common law wrongs impose strict liability. Liability only depends on proof of the act –
intent or negligent is not required. Such cases are few and the exception in our law.
(a) Common law examples
Actio de pauperie – liability for animals
If a domestic animal acts against its nature (i.e. ferociously and not tamely and gently) the owner is liable in
delict for the injury or damage caused to third parties.
However, this will not apply where:
-
The plaintiff had no right to be there when s/he was attacked.
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-
S/he or a third party provoked the animal
-
The harm was as a result of pure accident
Actio de effuses vel dejectis - liability for falling objects
If a person is killed or injured by something thrown or falling out of a building where the public normally
pass, that person or his dependants has an action in damages against the occupier of the building for the
harm suffered, irrespective of negligence or intent.
(b) Statutory examples
Statutory liability is imposed for activities that create extraordinary risk of harm to the community. A fixed
maximum amount of compensation is sometimes set.
The Aviation Act
Victims of objects falling from an aircraft have a claim to the owner of the aircraft, irrespective of fault.
1.8 Vicarious liability
Vicarious liability is strict liability of one person for the delict of another. Liability attaches only when there is
a particular relationship, e.g.:
-
Employer and employee
-
Principal and agent
-
Motor car owner and the driver
(a) Employer and employee
The employer is liable if:
-
The relationship of master and servant can be established, and
-
The servant was acting within the scope of his/her employment and time of the incident. If a forbidden
act is connected to the general character of an employee’s work, the employer is still vicariously liable.
Example 1
(Viljoen v Smith 1997 (1) SA 309 (AD)).
An employee in a vineyard, contrary to a prohibition by his employer, walked 300 meters and relieved
himself in the bushes on a neighbouring farm. He tried to light a cigarette and caused a fire there.
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According to the court, the employee was deemed to have done the act during the course of his
employment as the digression was a fairly short distance and a few minutes and employer was liable
Example 2
Private work for directors
If a director or executive of a company engages a company employee to do work such as maintenance at
the director’s private house, the employee is then under the personal authority of this official who will be
legally responsible for injury or damage caused by the employee.
Example 3
Labour Only – Subcontractors
For insurance purposes self employed persons, labour gangs are taken as direct employees of the main
contractor who exercises considerable control over them and is also responsible for the requirements of
construction regulations.
(b) Principal and agent
A principal/agent relationship must exist at the time of the delict and agent must be working within the
scope of his authority e.g. misrepresentation by the agent to a third party.
(c) Motor car owner an driver (other than employee of owner)
For liability to attach:
-
the owner must ask the driver to drive or supervise his driving
-
the vehicle must be driven in the interests of the owner
-
the owner must retain a right of control over the manner in which the vehicle is driven
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CHAPTER 2
DEFENCES AND REMEDIES
2.0 Introduction
Various defences and remedies are available to the defendant and plaintiff respectively. These are
discussed below:2.1 Defences
(a) Lack of capacity / accountability
A person’s responsibility for his action depends on his capacity to distinguish between right and wrong and
act accordingly. The following may affect one’s ability to distinguish between what is right and wrong:
-
Children: children under seven years are regarded as lacking capacity. Those over seven years but
under the age of fourteen years are presumed to lack capacity, unless proved otherwise.
-
Mentally deficiency: a person may be unable to distinguish between right and wrong or be able to
distinguish but unable to act accordingly.
-
Liquor and drugs: someone may lack capacity by being under the influence of liquor or drugs.
However,
they are liable because they are responsible for taking these substances in the first place.
-
Provocation: a provoked person may become so angry to the extent he will not be able to know what
he
is doing.
-
Automatism: the performance of actions, such as sleep walking, without conscious knowledge or
control. The defendant may not intentionally create a situation where he acts involuntarily in
order to harm another.
2.2 General defences
.
(a) Private defence
Every person is entitled to defend himself and members of his family and his property against attack. The
following defences are available in delict:
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Attack
-
Must be wrongful
-
Must have commenced or imminently threatening. He must act with the intention of preventing an
existing or imminent attack.
-
Must not have ceased. At this stage would amount to revenge, not defence.
Defence
-
Must be directed against the aggressor
-
Must be necessary to protect the right. It must be the only reasonable alternative to protect threatened
interest.
(b) Necessity
State exists when defendant is placed in a position such that he is unable to protect his interests (or those
of another person) except by violating the interests of an innocent third party.
Examples

Mr Chinos breaks down the door of Mr Jabu’s burning house in order to rescue Mr Madi who is trapped
inside.

A person defending himself against attack by an animal acts out of necessity, not self defence as an
animal cannot act wrongfully.

If a patient has not consented to treatment, such treatment may be administered out of necessity. The
doctor has to prove that treatment was out of necessity and the circumstances were such that he could
not obtain the requisite consent.
(c) Provocation
Provocation can provide justification or reduce the amount of damages awarded.
(d) Casus fortuitous (inevitable accident)
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This is where the accident could not have been avoided by any precautions which a reasonable man could
be expected to take e.g. floods and lightning.
.
(b) Vis major ( Act of God)
The defence is similar to casus fortuitous. Vis major is a superior force which cannot be resisted or
controlled.
(c) Consent
The courts will not readily accept that a person consented to harm. Requirements of defence under consent
are:-
Knowledge:- of the nature and extent of the risk
-
Appreciation:- understanding what the nature and extent of the harm will be
-
Consent: - must be legally permissible and not contrary to public interest. There must be no force or
compulsion and the person must be able to distinguish between right and wrong.
Examples
(i) A farm worker was given the choice between a beating and prosecution. He agreed to beating, but the
farmer was afterwards convicted on an assault charge.
Consent to injury or risk of injury is:-
Given by words (express consent) or
-
Given by actions (tacit consent)
-
A question of fact, which must be proved
(ii) Disclaimer and ticket cases
Some providers of goods and services use disclaimers that are meant to exclude or limit the liability that
would otherwise apply to owners of the business. For example: Parking at owner’s risk or luggage carried at
owner’s risk or garment cleaned at owner’s risk.
Agreement to these special conditions and warnings is a question of fact that must be proved to the
satisfaction of the court. The court will seek to be convinced that that the consumer saw the notice or knew
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that there were conditions printed on the ticket and that they formed part of the contractual agreement or the
party issuing the notice did what was reasonably necessary to draw the consumer’s attention to it.
.
(iii) Volenti Non Fit Injuria ( A willing person is not wronged or he who consents cannot be injured)
Under this doctrine the injured person consents to specific harm. For example if a patients consent to
excision of an abscess on the right big toe, the surgeon cannot amputate the right foot.
(iv) Consent to risk of harm
By signing a consent form for operation, a patient agrees to the risk of surgery, including possible side
effects of anaesthesia, prolonged recovery, etc.
(e) Contributory negligence
The courts will apportion the damage of each party according to his degree of fault and has the following
effect:
-
The plaintiff, although partly to blame, can still recover part of his damages
-
Contributory negligence on the part of the plaintiff reduces the damages against the defendant.
Example
Failure to wear seat belt constitutes contributory negligence on the part of the passengers in an accident
where the failure to do so would lead to serious injuries or fatalities.
(f) Negligence of third party
The defendant can cite negligence or intent of a third party as cause of the damage in his defence.
However, negligence of the deceased cannot be imputed to his dependants suing for deprivation of support.
(g) Negotiorum gestor
This occurs when someone acts in the interests of another but without the other’s permission. For example,
if you break down a door to extinguish a fire which has broken in a neighbour’s premises in order to save
the house and its contents, you will not be liable for the damage to the door but you may claims
compensation for reasonable costs incurred.
However, the gestor must be reasonable in the circumstances and perform it in good faith and that the
principal would have consented if his permission had been sought.
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(h) Mistake
Mistake does not usually constitute a defence but it may show that there was no intent to injure.
(i) Release
A person who would otherwise have an action in delict may at any time elect to release the other party. The
party cannot claim damages for the same action in future as release constitutes a valid defence. However,
release only extinguishes claims by the person electing release but not the claims by his dependants.
(j) Prescription
Most delicts prescribe and become unenforceable after three years.
Important features of prescription:
-
Does not run if the wrongdoer wilfully prevents the plaintiff from finding out about the delict.
-
Does not start to run until the plaintiff is aware of the delict or could be reasonably be expected to be
aware of it
-
Three years is a general principle and most short term insurance policies provide for afar shorter
prescription period. Insurers should be notified of the occurrence of an event within a short period while the
formal claim should be lodged within a certain period, for example, two years. However, in liability claims,
the period for submitting the claim may be extended to allow for proper assessment of the extent of loss.
(k) Effect of contract conditions
Contract wordings may seek to alter or restrict common law liability or may emphasise or restate the
existing common law position.
(l) Indemnity clauses
One party agrees to indemnify another against loss or liability. For example a client hiring mobile plant is
responsible for loss or damage to the plant, unless the loss resulted from a pre-existing defect or loss was
not caused by the client.
(m) Exemption clauses
These are meant to exclude or restrict (limit) liability of one party in some way. Courts are often reluctant to
enforce exemption clauses as the legal principle is that parties cannot contract out intentional wrongful
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conduct. It most cases negligence is equated with intent and as a result exemption clauses offer no
protection.
Example
A principal may require a contractor to assume responsibility for injury or damage even in circumstances in
which he had no control. The contract might either be worded to relieve the contractor of liability in cases
where he no effective control or word it in a way that makes him responsible for his negligence, that of his
employees and subcontractors.
Exemption clauses must be specifically incorporated in the contract at the time of entering into the
agreement. For example, a hotel guest who has already signed the register when booking in, is not bound
by a further list of exclusions he later finds pinned behind the door of his room (Olley v Marlburgh Court
Ltd 1949)
On the other hand, a disclaimer notice on the ticket office of an amusement park was held to be binding as
it was clearly displayed and would be seen by people buying tickets for the rides (Durban’s Water
Wonderland (Pty) Ltd v Botha and Another (1999) 1 All SA411 (A))
Where exemption clauses are incorporated in tickets or vouchers, either on the document itself or by
reference, e.g. subject to NRZ railway regulations the following tests apply:
-
Did the person receiving the ticket or document know that there was printing or writing on it
-
If so, did he know that it contained provisions relating to it
If the answer is “yes” then the provisions apply without further enquiry
If answer to any of the questions is “no” the following question should be asked
-
Did the person issuing the ticket do what was reasonably sufficient to give the plaintiff notice of the
stipulation? If the issuer did, then its provisions are binding even if the person was blind, illiterate or did
not see the printing.
(n) Effect of statutes
Causing damage by conduct in breach of statutory duty is prima facie (at first sight) wrongful and is an
indication of wrongful violation of the plaintiff’s interests. However, in order to succeed in delict he must
prove that:
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-
The relevant statute provided him with a private law remedy
-
He is a person or a member of a group of people the statute was meant to protect
-
The harm and the manner in which it occurred are as contemplated in the statute
-
The defendant transgressed the statutory provision
-
There was causal nexus (connection recognisable by law) between the transgression and the harm
suffered.
Example
Mr Nzo who had a shop near a mine compound applied for interdict against Mr Bigot who ran a similar
business on claim land at the entrance of the compound. Trading on claim land was prohibited by statute.
The court held that infringement of goodwill is unlawful, if caused by conduct prohibited by statute.
(o) Remedies
The objective of a legal suit by plaintiff is to get some relief or compensation through the courts. The most
usual and important form of relief is damages which fall into the following categories:(i) General damages
These are damages that flow from the delict or breach of contract and can be claimed for pain and
suffering, nervous shock, loss of general health and amenities, reduced earning capacity, future medical
expenses, etc.
(ii) Special damages
These damages do not flow from the commission of delict and the plaintiff will have to prove his loss e.g.
loss of earnings. The special damages claimed must be itemised in the pleadings, for example on bodily
injury, losses actually incurred like medical expenses and past loss of earnings is treated as special
damage.
(iii) Patrimonial damages
These are awarded when a wrongful act has caused patrimonial loss.
(iv) Sentimental damages
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Sentimental damages are awarded as consolation for injured feelings, insult and indignity caused by the
wrongful act of another.
(v) Real or ordinary damages
These are normal damages awarded and are compensatory in nature.
(vi) Nominal damages
These are very small awards in comparison to the real loss suffered.
(vii) Contemptuous damages
These are very small losses retained for the plaintiff’s account which he would not naturally bring action
against because they are not worth of serious or sensible treatment.
(viii) The once and for all rule
The rule states that a single wrongful act gives rise to single cause of action for all damage past, present
and future. The plaintiff must claim all his damages in one action. The intention is to avoid overloading the
courts with numerous claims on one action and also unnecessary harassment of the defendant.
(ix) The de minimus rule
The court will not interfere in clams for insignificant amounts or where the fault is negligible. De minimus
non curat lex – the law is not concerned about minor matters.
(p) Interest
Damages claimed may include an element of interest on money. For example, an investor working on the
basis of advice received from his financial advisor makes in an investment in a company that is serious
financial problems. The investor can claim his money lost together with interest he could have been earned
had the money been invested elsewhere.
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CHAPTER 3
LIABILITY ARISING FROM PROPERTY, BAILMENT AND VEHICLES
3.0 Introduction
Liability to third parties can also arise from property, contracts of bailment and use of vehicles.
3.1
Immovable property
Dangerous immovable property to which members of the public have access to is the most common source
of potential liability. People in charge of such immovable property have a duty to correct the dangerous
situation and can be held responsible for any damages if they:
-
Knew or should have reasonably known the defective or dangerous condition
-
Knew or should have reasonably foreseen the presence of the other party on his premises, and
-
Failed to take necessary precautions.
The amount of care to be exercised is dependent on the class of person likely to be brought into contact
with a possible danger. This means there would be a greater duty of care to children than adults (Ross v
Salisbury Gold Mining Company 1910 WLD ad 501)
The following groups of persons have a duty to avoid creating a dangerous situation toward any person
whose presence in their premises is foreseen.
(i)
Owner
The owner of a building who lets out space to individual occupants is under duty to keep the staircase and
passageways to the rooms or any part of the building where he has direct control in safe condition.
Any building or structure used for carrying on some business or use by members of the public must be
erected and maintained in a secure manner.
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Liability may arise out of negligence on he part of the landlord or his employees for defects that could have
been discovered by the exercise of reasonable care or where the landlord has been given due notice of an
existing problem and failed to act. The responsibilities of the landlord and tenant governed and protected by
the terms of the lease agreement.
The tenant should satisfy himself that the premises are fit for the intended purposes. However, the landlord
may still be liable if:
o
Where there was an express warranty of fitness
o
He was guilty of fraud
o
Had undertaken to keep the property in a good state of
Examples

The landlord was liable for damages to the lessee repair of a flat who was injured by slipping on
polished granite steps (Spencer v Barclays Bank 1947 (3) SA 2300 (T)

A tenant fell from a defective balcony and broke his leg (Amin v Ebrahim 1926 NPD 1)
(ii) Invitees
A person who invites others to his premises must take reasonable care to protect them and ensure that
there is no hidden danger.
(iii) Roadways
There are many cases of injuries death suffered as a result of stumbling or falling into holes in the ground
or sidewalk. The municipalities owe members of the public a duty of care and as result many legal actions
have been brought against them.
(iv) Tenants
A tenant who is the sole occupant of premises is responsible for fire damages to the property because in
terms of standard tenants’ liability agreements on the market:-
He has a contractual duty to return the premises in the same condition as he received them
-
The circumstances of the fire are normally within the tenant’s knowledge rather than the landlord’s
-
The res ipsa loquitur principle (facts speak for themselves)
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Example
A temporary manager of a business threw a lighted cigarette behind the counter among some scrap paper.
He put his foot on the cigarette but did not make sure it was out.
A fire ensued and the court held that there was positive evidence of negligence, due caution had not been
taken and liability was established.
(v)
Occupiers
The person in control of the premises at the relevant time is responsible for injury to persons entering the
premises.
(vi)
Licenses
A licensee is a person who enters the premises with the express or implied permission of the occupier for a
purpose in which the occupier has no interest e.g. insurance surveyor inspecting the building for the
owner’s insurance. The occupier owes the surveyor a duty to warn him of hidden any dangers.
(vii) Other persons and property
In addition to liability to visitors, an occupier has a duty to take reasonable care not to cause injury or
damage to passers-by. He must therefore keep the premises in good state of repair and safe for members
of the public, including trespassers.
A person injured by something falling, thrown or poured from a building where the public commonly pass
has a right of action against the occupier. The occupier has a right of recourse against the person
responsible for actually causing the damage.
3.2 Moveable property
Liability of owner ceases when control ceases. However, this may not always be the case where products
are delivered to another person and the liability arises from the use or dealing with that product.
Example
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The railway department at Durban received logs consigned to a certain company. The railway undertook to
carry the consignment to a station next to the company’s mine. The logs were loaded by the railway
employees in a truck and carried to the station as agreed. The truck was taken over on behalf of the
company and taken to the mine by one of the company’s engines.
The logs were kept in place on the truck by chain tightened by swivels but the railway employees had failed
to wind up these. In offloading the logs at the time a company employee was fatally injured without
negligence on his part.
The court held that the railway administration was liable on the grounds of negligence.
-
A reasonable man would have foreseen the danger to any off loader
-
The position was not affected by the fact that the truck had passed out of control of the railway
administration
-
The defence of volenti non fit injuria was not available to the railways as the deceased did not have
full
knowledge and appreciation of the risk involved (Union Government (Minister of Railways and
Harbours v. Matthee (1917) AD688)
(a) Bailment
Bailees or depositories are people entrusted with the charge or temporary possession of other people’s
property for the purposes of storage or for some work to be done for a reward.
The bailee is liable to compensate for any loss or damage to the property. However, he can avoid liability
by proving that he (or his employees) took reasonable care in the circumstances and the loss occurred in
spite of this. The claimant is only obliged to show that he is the owner of the goods and that they were in
the bailee’s possession.
Where the property is held without reward, the depository is not liable if the property disappears, perishes or
deteriorates through causes beyond his control. However, the depository would be liable were lack of care
or use of property in breach of conditions of the contract can be established.
3.3 Parking garages
Garages and car parks are a frequent source of liability claims because of the increase in theft of or
damages to parked cars. Customers normally try to hold the operator of such facilities responsible for the
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damage they have suffered. Liability is based on the contract of bailment between owner or driver of the
vehicle and the operator. The plaintiff may claim costs necessary to restore the damaged property to its
previous position. In the case damage to vehicles, this would include cost of panel beating, repairs and cost
of car hire or the value of the vehicle on total loss. However, the operator can avoid liability by proving that
he (or his employees) took reasonable care in the circumstances and the loss occurred in spite of this.
Usually operators make use of disclaimer notices and conditions printed on the ticket issued.
Example
Mr Wakeling left his car at a parking garage run by King’s Car Hire. The car was stolen by unknown
persons and was recovered damaged some weeks later. Wakeling claimed compensation from the garage
on the basis that since he had paid a fee there was a contract of bailment.
There was a notice at the entrance to the garage saying that cars were parked at owner’s risk and also on
the ticket placed under the wiper blade of the car.
The court found that the garage had done everything reasonably necessary to inform Wakeling that the
contract of bailment was subject to owner’s risk and there was no evidence to show that employees of the
garage were negligent in any way. It was held that the garage could not be held liable for the damage
(Kings Car Hire (Pty) Ltd v.Wakeling (1970).
3.4 Road accidents
The Road Traffic Act Chapter 13:11 deals, among other things, with:-
Specifications for vehicle lengths, height, steering, lights, breaks and seat belts
-
Depth of tyres and in the case of busses, minibuses and goods vehicles maximum speed limits and
load ratings
-
Legislation regarding the use of the road.
(a) Liability for negligence
Any person who drives his vehicle without due care will be liable for negligence.
Failure to wear a seat belt can constitute contributory negligence in that wearing them may result in
whiplash injuries and without them they would be more serious injuries even death.
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(b) Pedestrians
Pedestrians as users of roads may be negligent in causing accidents, for example, failing to keep watch of
approaching vehicles while crossing a street may result in a collision.
Motorists must also have regard to the rights of pedestrians, e.g. at a pedestrian crossing, he must give
way to pedestrians.
CHAPTER 4
PRODUCTS LIABILITY AND DEFECTIVE WORKMANSHIP
4.0 Introduction
Sellers and suppliers of goods and services e.g. manufacturers, importers, exporters, wholesalers and
repairers may incur liability to their customers for injury, illness or damage from the goods which they have
supplied or worked on.
As has been already been discussed, liability can arise in contract, or in delict or by virtue of statute, etc.
4.1 Contract
In every contract of sale (unless otherwise agreed) the seller by implication of law warrants that the thing
sold is free from any defect which may render it unfit for the purpose for which it is ordinarily used or for
which it sold. The seller’s warranty extends to latent defects whether the goods were inspected or not. The
buyer cannot complain of patent defects.
There are two major factors governing the seller’s liability, namely:
-
The degree of seriousness of the defect
-
The class of the seller and his state of knowledge
Where the latent defect is so serious to the extent that no reasonable man would have purchased the article
had he been aware of the defect, the seller should take the article back and refund the price. This is
remedy is called actio redhibitoria. Less serious defects involve lesser responsibility and the purchaser will
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keep the article and get a refund of the appropriate portion of the purchase price. This remedy is called
actio quanti minoris
Normally, a seller who is ignorant of a latent defect is not liable for damages suffered by the buyer as a
result of the defect.
(a) Express conditions and exemption clauses
Express agreement of the parties may seek to modify the liabilities and remedies that would arise by
statutory provisions and implied conditions of fitness and merchantability. The parties inter alia, might:-
Attempt to substitute lesser obligations
-
Set a time limit on claims
-
Insert an exclusion of the implied warranty against latent defects – “voetstoets” sale.
(b) Special classes of seller
The following classes of sellers have liability for the products sold:-
Manufacturers selling their own goods
-
Merchants dealing in articles they publicly confess to have skill and expert knowledge. E.g. In the case
of Kroonstad Weselike Boere Kooperatiewe Vereniging and another 1964 3 SA 561 AD where due to
latent defect, a weed killer sold to control weeds also destroyed the crop it was meant to protect
-
Sellers who knowingly sell the product without disclosing the defect to the customer.
The sellers are not only liable to refund the price but also compensate the buyer for consequential losses
suffered as a result of the damage. Insurers in product liability insurance are not concerned with the refund
price but with the damage that would result from use of the defective product.
4.2 Delict
Only the direct customer of the seller can bring an action based on breach of contract. However, the seller
may be liable in delict to any other consumer or person injured by the goods. Products liability is based on
negligence or wrongful action causing harm. Any person who puts goods into circulation and works on the
goods or adjusts them must take reasonable care to prevent them causing harm to people likely to come
into contact with them. Delictual liability is illustrated in the following leading cases:
(a) The Gibb’s Case
A Gibb & Son (Pty) Limited v Taylor & Mitchell Timber Supply Co. (Pty) Ltd (1975) 2 SA 457
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Gibb & Son was a contractor erecting a building in Johannesburg. The plastering work was subcontracted,
but Gibb & Son agreed to erect the scaffolding. Saligna boards were used because saligna rarely has any
knots it. At a certain stage extra scaffolding was required and it was obtained from the defendant. However,
one of the boards had a knot in it and it broke under the weight of one of the plasterer’s employees. Gibb
& Son paid out the injured employee’s damages and sued the timber merchant for the recovery of 90% of
the amount.
It was the plaintiff argument that although the foreman had neglected to check each board, the defendant
should have inspected the boards, discovered the faulty one and rejected it.
The court held that the timber merchant liable in delict as he failed to exercise reasonable care to discover
the defects. A reasonable timber should have foreseen that builders would carefully examine boards to be
used as scaffolding.
(b) The Datsun Case
Combrinck Chiroprakitiese v Datsun Motor Distributors (1972) 4 SA 182
Another example relates to the motor trade. Once dispatched by the maker a motor vehicle might be:-
Driven or transported by a deliver to a main distributor
-
Checked by this distributor
-
Collected by a local agent
-
Driven by a prospective buyer before he buys it
If there has been negligence by the manufacturer there could be an accident to any of these parties and the
maker owes a duty of care to each of them.
In the Datsun case, the plaintiff leased a new Datsun car from a leasing company. The leasing company
had bought the vehicle specifically to lease it to Combrinck clinic. In the lease contract, the leasing company
exempted itself from liability for repairs and stipulated that it made no representation or warranties to the
lessee. In the lease contract, the lessee also acknowledged that it had inspected the vehicle and was
satisfied with its condition.
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Later the plaintiff discovered various defects involving expensive repairs and a long period during which they
could not use the vehicle and claimed against the manufacturer in delict on the grounds that the defects
were due to the manufacturer’s negligence.
The manufacturer argued that he owed no duty of care to the plaintiff as a member of the public who might
buy or hire a vehicle. The magistrate court agreed and decided that there was no cause for action. The
plaintiff appealed to the High Court, who decided that in principle a manufacturer can be sued in delict for
damages caused by his defective products. The judge went to state that negligence can be deduced from
the facts according to the doctrine of res ipsa loquitur (facts speak for themselves; they need no formal
proof. The appeal failed because the manufacturer did not act unlawfully.
(c) Conclusions
The following conclusions can be drawn from the cases:
-
Products liability was recognised as Delictual liability and in particular as acquilian liability
-
Acquilian liability is bases on fault
-
The plaintiff must prove that the defendant acted negligently
-
There is a clear indication that the pro
4.3 Defective Workmanship
Workmen owe the customer a duty of care on the goods worked on. The legal principle on products liability
and defective workmanship is the same:
Example 1
A repairman works on a washing machine but neglects to reconnect the earth lead. The machine is
delivered to the customer and during use a live wire comes into contact with the metal. The customer is
electrocuted.
Example 2
New tyres are fitted to a car. There is nothing wrong with the tyres, but the wheel nuts are not properly
tightened. A wheel comes off at high speed and the car is wrecked, injuring or killing occupants.
In both cases damage occurs after the work had been done and handed over.
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Exemptions
The following exemptions apply:
-
The cost of rectifying or recalling defective work
-
Liability arising from inefficacy of such work or because the work did not produce the results anticipated
or claimed
-
Liability arising prior to the handing over of the work
-
Defective design
4.4 Products liability cover
This is usually issued as an extension to the public section of a combined public liability policy.
(a) Defined events
This section defines events covered, e.g. death, injury or sickness to any person or accidental loss or
damage to tangible property which occurs in the course of or in connection with the insured’s business.
(b) Specific exceptions
The following is an example of a specific exemption that concerns products liability:The company will not indemnify the insured in respect of liability consequent upon injury or damage caused
by or through or in connection with goods or products (including containers and labels) sold or supplied and
happening elsewhere than on the premises occupied by the insured other than food or drink supplied
incidentally for consumption on the premises.
(c) Products liability extension
This provides cover elsewhere than on the premises for liability, e.g.
-
Caused by goods or products (including containers and labels)
-
Due to wrongful delivery of incorrect goods
(d) Additional specific exceptions (Products liability extension)
The extension does not cover liability:-
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-
For the cost of repair, alteration, recall or replacement of goods, e.g. a chair collapses causing injury.
Insurers will pay for the injury and not the cost of replacing the chair.
-
For the cost of demolition, dismantling, delivery, supply and installation of the goods. For example, an
air conditioner supplied by the insured starts a fire. Cover is for damage to surrounding property and not the
cost of dismantling the unit from the wall and supplying and installing a new one.
-
Arising from defective or faulty design, formula or plan or specification
-
Arising from inefficiency or failure to conform to specification unless due to negligence
(e) Liability
The insured is not covered in respect of business carried on at or from premises outside territorial limits.
Exports can be made to any country but claims are payable in respect judgements delivered by courts with
specified countries, e.g. Zimbabwe, South Africa, Namibia, Zambia.
4.5 Defective workmanship cover
4.6 Underwriting
(a) Description of business
In addition to the name and address of the proposer, the most important information is the description of
business. This gives an indication of the type of risk being considered, type of product or service and the
place occupied in the supply chain i.e. to what extent subrogation rights might be applied by or against the
propose.
The following broad classification is often met in practice:
-
Manufacturing risks, importers, and suppliers of raw materials
-
Wholesale and distribution trades
-
Retailers
However, these broad classifications fall short as they do fully describe the nature of business. For
example, the business of a wholesaler may involve only pre-packaged goods and the risk is lighter, e.g.
Mohammed Mussa in Harare. When the trade involves storage of perishables or mixing, preparation and
packing, the insurer needs to know exactly what is going on, and rate the risk accordingly. Many products
are harmless on their own but can cause extensive loss when incorporated as a component or ingredient.
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(b) Rating considerations
Most insurers have broad categories of rates applying to different trades and products and will consider the
following:-
Reputation and experience of the proposer including any previous claims
-
Whether proposer is manufacturer, wholesaler or retailer and the distribution channels used
-
The nature of goods and the purpose for which they are supplied
-
Conditions of sale
-
Turnover divided between different products
-
Volume of exports an countries exported to
-
Raw materials, components and their source
-
Type and source of packaging (often, goods are contaminated by defective packaging material)
-
Instructions, warnings and advice given on the use of the product, e.g. wearing gloves while handling
pesticides.
Premiums for both products liability and defective workmanship are usually on an adjustable basis, perhaps
subject to a minimum premium. A rate percent per mille is usually charged based on turnover. Large limits
of liability, protected by excess of loss reinsurance, are often required.
4.7 Product guarantee and financial loss cover
Product liability operates only if there has been damage or injury caused by the defective product. There is
no cover for replacement of the product itself and there may be further financial consequences.
Example
A generator installed at a factory is found to be malfunction after commissioning. This was the first of ten
generators the supplier would install. The malfunction might cause loss of the contract for the other nine
installations, no payment for the existing one, ancillary costs in removing the generator, installing a
temporary unit, fines and penalties, etc.
The solution might be a product liability insurance policy with an extension for financial loss cover or even
guarantee insurance. There is a specialist market for this cover. However, in Zimbabwe, insurers are
reluctant to offer this cover.
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CHAPTER 5
THE PUBLIC LIABILITY POLICY
5.1
Personal and family liability
Every individual who is legally competent by age and mental capability has a legal responsibility to other
members of the public to exercise due care in order to prevent injury or damage to persons and their
property.
(a) Property owners
The owner of a private residence and the land on which it stands has responsibility to maintain it in a
condition that will minimise the risk of injury to persons or damage to their property. The most common
source of claims is a defect in the residence, such as a loose tile falling from the roof, or a defective
veranda railing, resulting in injury to persons or damage to property. The relationship with tenants will be
affected by the terms of the lease, but this does not apply to third parties such as visitors.
(b) Occupants
The occupant has responsibility similar to that of the property owners. In addition they are liable for defects
which the owner might not be aware of, e.g. slippery polished floors, loose rugs or that a dog bites.
(c) Tenants
At common law, and usually in terms of the lease, the tenant has a legal responsibility to the owner for loss
of damage to the residence, its fixtures and fittings. The policy will specifically include such things as
accidental damage to toilet fittings and fixed glass.
(d) Employers
Domestic servants are not covered by the Workman Compensation Act. If they are injured in their course of
their employment as a result of the employer’s negligence, their only remedy is the common law.
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(e) General Liabilities
There are many sources of potential liability arising from ordinary activities away from the residence other
the few mentioned above. These were, in fact the original reason for the development of personal liability
insurance. Examples include the following:Stones thrown up by your power mower while cutting grass
-
Your dog running down the street an biting the postman
-
An accident you cause as pedestrian when you step in the path of a moving vehicle
-
Negligently poking your umbrella in someone’s eye
(f) Usual exceptions
The cover excludes compensation payable to:-
The insured and any member of his family normally resident with him
-
Any one acting in employment with him (at the time of the event) other than domestic staff
-
The insured’s co-directors and their families
The exclusions are meant to prevent collusion.
-
Loss, destruction or damage to property in the custody or control of any of the above
-
Liabilities arising out of:-
Insured employment, business or profession
-
Ownership of land or buildings other than the insured’s dwellings insured under the policy
-
Ownership or use of vehicles, air or watercraft.
-
Liability accepted by contract or agreement, which would not otherwise have attached.
5.2 Professional liability
General forms of public liability policy exclude advice or treatment of a professional nature, as claims do not
always arise from accidental injury or loss of or damage to property within the meaning of an ordinary public
liability policy.
Professional liability insurance is meant to protect the professional man against legal liability for loss or
damage sustained as a result of his/her own professional negligence and that of his/her employees in their
conduct of his/her business.
(a) Contract
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A contractual relationship comes into existence when someone employs someone to act on his behalf. It is
an implied term of the contract that the professional man/woman will exercise care and skill expected from
any other competent practitioner in that profession. If he/she fails to exercise care and skill causing loss or
damage to the client, he can be sued for negligence arising from breach of contract.
(b) Delict
The law describes professional negligence and accountability of an expert. The “reasonable man” test is
replaced by the “reasonable expert” in other words, the reasonable dentist, surgeon, electrician, lawyer,
insurance broker, etc. The standard is not the highest in the relevant profession or occupation but the
general or average level of expertise.
The professional man is liable for loss or damage as a result of advice given under contract for reward or
without contract. By taking responsibility he is under the same duty to exercise reasonable care and the
damages are the same whether he is sued in contract in contract or delict.
(c) Policy wordings
There are “blanket” wordings suited for a wide range of occupations. Examples of standard wordings cover:-
Breach of duty of care occasioned by any neglect, error or omission on the part of the insured, any
employee, any agent, the predecessors, or any other person, firm or company acting jointly with the
insured.
-
Claims from third parties arising out of any dishonest or fraudulent act or omission on the part employee
or agent.
-
Defamation
-
Loss or damage to documents
-
Compensation for court appearance
-
Other costs incurred with the insurer’s consent
-
Negligence or employee error, is the most frequent cause of claims
-
Many professional firms are in the form of partnerships, liability is joint and several. The policy
indemnifies existing and new partners against liabilities that may arise from the previous firm’s
negligence
-
A substantial excess usual applies
.
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(d) Types of risk
The need for cover is extended to cover many kinds of occupations. Sometimes, cover is a statutory
requirement or required by agreement. Some professional associations negotiate group schemes for their
members but many policies are arranged on an individual basis. Underwriting and rating considerations
depend on occupation or profession but is usually based on numbers, qualifications and experience of
principals and staff, previous claims record and the limit of indemnity required.
5.3 Examples of occupations and professions requiring professional indemnity
(i)
Accountants
An accountant must know the general principles of company law and the statutory requirements of the
auditor’s certificate. Claims usually arise for failure to detect defalcations, negligence in examining business
accounts or giving advice or mishandling of client’s tax affairs.
In De Meza V apple, Van Straten and Stone (1975) the auditors supplied an incorrect declaration of fees
under the client’s business interruption insurance. The client was found to be underinsured when a fire
occurred and a claim was intimated.
(ii) Architects and engineers
These professional may be liable for incorrect advice, incorrect drawing up of plans, and errors in
specifications, designs, tenders or quantities, negligent supervision of structural and other work.
The professional indemnity policy covers only the risk of negligence, e.g. a professional may use
reasonable skill and care and yet produce something that is faulty and cannot be used for its intended
purpose.
(iii) Auctioneers, estate agents, surveyors, valuers
Reasonable care and skill is required of these professionals in the services they render to their clients, e.g.
firm will be liable for failure one of its employees to exercise reasonable care a valuation.
(iv) Doctors, dentists, medical auxiliaries, opticians
Persons in these professions may be subject to claims on the grounds that they failed to use reasonable
care. Recent press reports of medical malpractice are disturbing and indications are that it won’t be long
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before medical practitioners are sued. Opticians may have claims made against them for wrong prescription
f spectacles or contact lenses, etc.
(v) Pharmacists
Claims arise from errors in making up prescriptions, e.g. incorrect dosage, can have serious consequences.
(vi) Advocates
An advocate owes a duty to the courts as well as his client and could be negligent in the advice given or
work done before a case comes for trial.
(vii) Lawyers
Claims usually arise from failure to take the required legal action within the statutory period, resulting in the
action becoming prescribed. Claims may also arise in connection with the sale of property or land, drawing
up trusts, administration of estates, etc
(viii) Insurance brokers
Brokers must carry out their client’s instructions and give proper advice. As agents of the insured they may
be guilty of non-disclosure of facts which there were aware of resulting in repudiation of claims.
(ix) Stockbrokers
They can be liable for negligent advice or failure to carry out the client’s instructions, e.g. buying when they
were supposed to sell.
(x) Hospitals and nursing homes
The hospital can be vicariously liable for the errors and omissions of its staff. Liability will depend on who
employs the employee (i.e. doctor, nurse, radiographer, laboratory technologist, etc). If the hospital does, it
will be liable. If the patient selects and employs the doctor or nurse, etc, the hospital will not be liable.
(xi) School teachers
Teachers have a duty to take reasonable care to prevent injuries to school children under their care e.g. on
school tours. If a pupil is injured due to teacher’s negligence e.g. driving recklessly, despite the existence of
Page 33
a signed indemnity indicated that the all tours shall be undertaken at the child’s own risk, the school will be
liable.
5.4 Directors and officers liability
5.4.1 Duties of Directors
A company is a legal fiction. Its affairs are governed by natural persons called the board of
directors. The board’s powers are derived from the shareholders whom they represent and are
articulated in the corporation’s governing documents which include the articles of association, any
bylaws and shareholder agreements (Colley et al (2003).
In the discharge of their duties, the directors must demonstrate the following:(a) Good faith
Directors have a fiduciary duty to the entity and must honestly apply their minds and act in the best
interests of the entity at all times. By assuming their office, the directors commit allegiance to the
enterprise and acknowledge that the best interests of the corporation and shareholders must prevail over
any individual director’s interest. The directors should therefore not use their corporate position to make
personal profits or gain other personal advantages. The duty of fair dealing requires that all the directors’
transactions with the corporation must be handled in a forthright and open manner that is fair to the
interests of the corporation.
(a) Good faith
Directors have a fiduciary duty to the entity and must honestly apply their minds and act in the
best interests of the entity at all times. By assuming their office, the directors commit allegiance to the
enterprise and acknowledge that the best interests of the corporation and shareholders must prevail over
any individual director’s interest. The directors should therefore not use their corporate position to make
Page 34
personal profits or gain other personal advantages. The duty of fair dealing requires that all the directors’
transactions with the corporation must be handled in a forthright and open manner that is fair to the
interests of the corporation.
(b) Care
The directors must act with a degree of care expected of a reasonable person caring for assets of
“an incapacitated person” (King, 2002). The entity is an incapacitated person. A company can
be taken as an incapacitated person being represented by its directors. To this end, the directors
must exercise good stewardship over the entity’s assets. They have the duty to be informed and
to make necessary inquiries, from either management or experts, to arrive at this state (Colley et
al, 2003).not use the company’s assets for personal gain and must honestly apply their minds in
making a decision in regard to the enterprise side of the entity’s business operations.
(c) Skill
The directors must use their previously acquired experience in the discharge of their obligations.
They must also use their experience to add value to the debate around the table especially in the
decision making.
(d) Diligence
The directors must do their homework and come to the decision making table fully informed about
the issues to be decided upon. They must understand the issues and information given to them.
To this end they must study the Board pack furnished to them in advance to enable meaningfully
debate and resolutions at the board meetings.
5.3. 2 When are claims most likely
(a) Mergers. Take-overs and divestment
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Directors have to account for assets during these times. In recent, many directors have been held
accountable to the new owners for shortfalls in assets or for incorrect statements made at the time of sale.
(b) Liquidation
Claims resulting from company failure can become lengthy, complex and expensive to defend.
(c) Share issues
Both civil and criminal issues can fall upon the director involved in the public issue of his company’s
shares, especially from representations made in issue documents.
(e) Others
Claims have been made against individual directors or entire board for misleading advice, wrongful
dismissal, age discrimination, and sexual harassment, breach of confidentiality, environmental impairment
and errors in drawing up contracts. The policy would be able to provide cover for the defence costs.
5.3.3 Policy structure
The policy is in two parts:
(i)
Protects the directors and officers in their personal capacity, in circumstances where they can
claim from the company.
(ii)
Indemnifies the company in respect of any loss where it is required or allowed to indemnify the
directors or officers.
Exclusions
These vary from insurer, but might be:
-
Bodily injury and damage to property
-
Claims insured under other policies (e.g. professional liability)
-
Pollution risks
-
Claims where there is personal profit or advantages to which the director was not legally entitled
-
Claims brought about by dishonesty of the individual director
-
Claims made by one director/ officer of the company, against another
-
Circumstances known about at inception
Limit of indemnity
This is an aggregate limit for all claims in any one year.
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5.5
Construction risks
Policies for these risks are issued either for a specific contract or on annual basis, subject to a declaration
of contracts and a maximum contract, above which individual terms must be agreed.
The policies specify the insured as:-
Principal, contractors, all subcontractors employed by the main contractor and all other
sub-contractors engaged on site in the performance of the insured contract
Cover is provided to the extent required by the contract:
- Suppliers, manufacturers or other company person or party undertaking work on the contract site
but only in respect of loss damage or liability originating at the contract site arising out of their
involvement in the performance of the insured contract at the contract site
- Any transport contract, company, person or partly undertaking transit or providing temporary
storage during transit of the property insured
- Any company, person or party providing temporary storage of the property insured at premises
other than the contract site.
The policy has as an “own damage” section for contract works and surrounding property damage and a
public liability section.
(i) The public liability section defines the insured wide enough to include all interested parties, but only in
direct connection with the performance of the contract and subject to the contract terms.
(ii) Loss, damage or liability arising from professional activity (project managers, consultants, engineers,
architects, quantity surveyors and others) and off-site manufacturing is excluded. This is matter for
professional indemnity insurance.
(iii) Cover is subject to a limit per event.
5.6 The standard liability section
Special wordings have been developed to meet individual circumstances in liability insurance, but in practice
most policies are usually worded so as to give basic cover that meets ordinary needs.
(a) The cover
Points to note:
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The policy specifically mentions that the aggrieved party must seek compensation from the insured and the
policy indemnifies the insured subject to its terms and conditions.
Damages are dependent upon legal liability – this makes clear that this is not an all risks cover.
Cover is limited to claims for damages arising out of:-
Injury – accidental death, bodily injury or illness of persons, mental injury and emotional shock
-
Damage – accidental loss or physical damage to tangible property
Territorial limits
The original injury or damage must happen within the territorial limits specified in the policy schedule.
In the course of the business
A full and exact description of the insured’s business is very important in liability insurance.
During the period of insurance
This is the usual wording and insured must notify the insurer of any event which may give rise to a
claim. The actual claim by the third party often comes about only later
Limit of indemnity
This is the limit in respect of all claims arising out of any one occurrence and includes legal costs
(b) Specific exceptions
The policy excludes:-
Injury in the course of employment, under a contract of service. This falls under NSSA Act.
Separate employer’s liability insurance and is usually taken on a contingency basis.
-
Damage to property belonging to the insured on which he has been working or in his custody or
control in that of his employee. Property must be insured under material damage insurance.
-
Advice or treatment of a professional nature (other than first aid). This is a matter of professional
indemnity.
-
Ownership, possession or use of mechanically propelled vehicles. This is matter of motor insurance
Page 38
-
Anything to do with aircraft, airstrips, airports or helipads. This is matter for specialist aviation
insurance
-
Products and their containers elsewhere than on the insured’s premises. This is a matter of
products liability insurance.
-
Defect, error or omission in work completed and handed over. This can be covered for an additional
premium under the defective workmanship extension,
-
Seepage, pollution or contamination, unless, caused by a sudden unintended and unforeseen
occurrence. It is difficult to draft an exclusion clause.
-
Fines, penalties, punitive exemplary or vindictive damages
-
Damages in respect of judgements not first obtained in Zimbabwe. The jurisdiction clause is added
to avoid confusion – only courts within the specific territories are courts of first instance
-
First amount payable. This does not relieve the insured of his duty to inform insurers of possible
claims and may not attempt to deal with the matter himself.
(c) Extensions
The policy can be extended to cover an additional insured apart from the insured and indemnify other
interested parties:-
In the event of death of the insured, his personal representatives in respect of liability incurred by
the insured
-
If the insured so requests, partners directors and employees
-
In connection with liability arising from the performance of a contract entered into by the insured for
the insured for the purposes of the business.
-
Sport and social clubs, including their members and officers and visiting teams, canteen, welfare
organisation, etc.
Provided that:-
The aggregate liability of the insurer is not increased
-
They are not entitled to indemnity under any other policy
-
The indemnity under, applies only where the insured would have been entitled to indemnity if the
claim had made against the insured
The parties listed are subject to the terms, exceptions and conditions of the policy in the same way as
the original insured and insurers waive rights of subrogation against them.
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Examples
Security firms – indemnifies insured in respect of liability assumed by virtue of his contract with a
security firm
Cross liabilities (in respect of group of companies) – treats the individual companies as if a separate
policy had been issued to each, provided that the aggregate liability of the insurer is not increased.
Tool of trade – except for fork –lift trucks, the operation, and demonstration or use vehicles as a tool of
trade is excluded under the liability section of the motor policy. This extension provides the cover
needed.
Employees and visitor property – liability in respect of property belonging to partners, directors or
employees of the insured and visitors is excluded under special exception section. This extension
provides cover.
(d) Tenant’s liability
In terms of common law, a heavy onus is placed on the tenant of a building for fire and explosion
damage occurring in the premises occupied by him.
Most local insurers subscribe to an agreement whereby the building insurers will not exercise rights of
subrogation against the tenant unless the fire or explosion was caused by his wilful or negligent act or
that of his servant acting in the scope of his employment or tenant has undertaken to insure the building
against fire and explosion. Damage can occur in a number of ways other than fire and explosion and
the owner has a common law right to compensation.
5.7
Claims made and occurrence basis
Policy can be issued on “occurrence” basis or a “claims made” basis.
(a) Occurrence basis
The event that results in the claim must occur during the current period of insurance and the insured
must advise the insurers of that event immediately or as soon as is possible. The actual claim might not
be made against the insured until sometime later.
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(b) Claims made basis
The event giving rise to the claim must be after the retroactive date shown in the schedule, and the
claim must first be made against the insured during the period of insurance. This wording is common in
the local market and will be discussed further below.
5.8
Claims made basis
A claims made policy is one where the event giving rise to the claim must be after the retroactive date
shown in the schedule, and the claim must first be made against the insured during the period of
insurance.
The modern high technology industrial society has produced long-tail claims, inter alia; claims for
diseases, pollution, or the sale of goods, made many years after the policy was effected and the event
actually took place.
The law and technical knowledge may have changed dramatically between the time of the policy and
the making of the claim, insurers will have to pay current claims our premiums received years before –
i.e. premium and indemnity limits which are inadequate in present conditions.
(a) Advantages
It provides insurers an opportunity to underwrite the risk more realistically and to close their books once
a policy has lapsed.
The insured‘s claim is dealt with by his current insurers and indemnity, not those under some previous
policy.
(b) Disadvantages
(i)
There may be a gap in cover when the insured changes from an occurrence to a claims
made wording. The previous policy would not cover damage occurring after the policy had
lapsed, and the new policy will not apply to anything before the retroactive date.
(ii)
If insurers of a claims made policy refuse renewal an insured can be unprotected against
events which have already happened, but for which claims have not been made.
(iii)
On inception, the insured must disclose, all past claims and events which might give rise to
claims in the future. It is often difficult for an insured to disclose all possible claims, and an
innocent misrepresentation might result in the policy being voidable.
(c) Policy wording
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The policy wording specifically mentions that the defined event must occur after the retroactive date and
the claim must be made in writing during the period of insurance.
CHAPTER 6
PUBLIC LIABILITY UNDERWRITING
6.0
Introduction
Many industrial companies have failed in the recent pat as a result of legal liability clams, for example:
-
Manville Corporation, the world’s largest manufacturer of asbestos products, arising out of
asbestosis claims
-
Union Carbide, 37th largest American company, arising out of a toxic gas release in Bhopal, India.
-
A H Robins, arising out of the contraceptive, Dalkon Shield
There have also been massive court awards against tobacco companies, on the grounds that they failed
to warn against the dangers of nicotine. A major disaster resulting in extensive claims anywhere in the
world has an immediate impact on the thinking of liability insurers, regarding premiums, terms and
conditions required for the future.
Risk Control
Liability claims arise from events. Liability surveys and underwriting considerations are closely related to
the control of the physical risk. One very claim in the recent past arose from a fire in the MGH Hotel in
which a number of people were killed. The event concerned was fire and loss reduction and prevention
a matter of fire protection and emergency evacuation procedures.
Legal liability risk control is not limited to insurable events. Therefore, the search for exposures should
include all areas from which a third party action could arise.
6.1
Basis of rating
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In most cases damages are quantifiable in terms of money, so premiums must be linked to measure of
exposure expressed in monetary terms as well as to the degree of hazard, the size of the business and
level of activity. Rates based on monetary values have the advantage that premiums adjust
automatically to altered levels of inflation.
(a) Wage roll/ Payroll
Wages, productive wages, are often used, but can be misleading. It is better to ensure a company
employing a few skilled, highly paid and motivated workers, than one spending less but a poorly trained
and disgruntled workforce.
(b) Turnover
This could be an indication of business activity and is often used as a basis for rating. Turnover
figures reflect not only wages but the cost of supplies and materials.
(c) Area of premises
This is used as a rating factor in some classes, again with the proviso that it is better to insure with
adequate space than those that are overcrowded.
(d) Numbers involved
Premiums might be based on:
Number of staff – shops, hairdressers

Number of beds, tables, seats – hospital, restaurants, cinemas

Membership figures, for private clubs and institutions

Attendance figures – fetes and sporting events that attract large numbers of spectators
More than one basis may be needed. A holiday resort e.g. might be let out rooms, run a restaurant,
hire out boats and riding horses, and other games.
Where the premium is adjustable, insurers fix the basis to be used at inception. A declaration is
submitted at the end of the year as required by the policy conditions and the premium for the past
year and for renewal and adjusted as necessary.
(e) Flat rating
Straightforward risks are often charged a flat non adjustable rate even this should be reviewed from
time to time, as inflation reduces the value of money, and the likelihood of larger claims, in money
terms, increases.
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6.2
Premises and away risks
The standard policy form on the market includes all activities connected with the insured’s business, so
it very important to consider these aspects for rating purposes.
(a) Premises risk
Full details of the insured must be disclosed to help the underwriter in properly assessing the risk. In
addition, the following aspects should be considered:
Other occupants – the insured may cause damage to their property e.g. by fire, smoke and
water damage. There are chances that the other occupants may be injured.

Visitors – these include customers, tradesmen and deliverymen bringing stock or raw materials
of collecting orders. The underwriter should consider the parts of the premises visited and the
extent of contact of the visitor and insured’s plant, machinery, employees and the degree of
control over this by the insured.

Other third parties and third party properties – insured can damage or injure surrounding third
parties and their property during the course of his business, including pedestrian and road
traffic. The major risk is that of fire that can spread to adjacent premises with serious
consequences. A liability underwriter must obtain a fire plan and report to help him understand
the risk better since it will detail the various processes carried on.
(b) Work away from the premises
The liability underwriter must know the nature and extent of the insured’s business activities. This might
involve simple hand delivery of documents or complicated as a major construction project. He must
consider the fact that there is continuous exposure when work is carried away from the insured’s own
premises, at and inside a third party property or in a public place. The report should also show the
occupancy of surrounding properties and how they are separated from the insured’s premises and the
distance between them. Other potential sources of claims include interfering with the natural flow of
water.
This will depend on:
Location of activities-

Nature of premises
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
(i)
Extent of heat process
Location of activities
Work in a country area should be a better risk than in a built up district, because off fewer people and
less traffic about and less congestion. However, in farms there might be a spread of fire risk to crops
and grazing.
The construction of new buildings should be a better risk than work on existing property. There is more
room for the operations on new sites, work can be easily planned and most of the property in the
vicinity will be in the contractor’s custody and control.
With existing property, the building itself, its contents, third party property is exposed to risk. In addition,
other contractors, the third party’s employees, as well as occupants and tenants, present an injury risk.
Operations on offshore installations, e.g., oil extraction, form another area of specialist cover.
(ii)
Nature of premises
Work in high risk environments, e.g. petrochemical works or on board ship will attract a higher premium
than similar work in dwellings, offices and shops.
For example, the risk of a plumber causing flood damage in a domestic environment is very real but the
financial consequences are very small. A mechanical services doing the same broadly similar work in an
industrial environment, the flood damage could be very expensive as water may damage some
expensive equipment e.g. computer servers, etc.
(iii)
Extent of heat processes
There are many instances of building being damaged or destroyed as result of careless use of welding
and heating equipment, .e.g. trades using electric, oxyacetylene and other welding and cutting
equipment.
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Insurers will usually impose special warranties relating to the precautions to be taken and the issue of
“hot work” permits. The contractor will be responsible for a substantial excess.
6.3
Examples of individual risks
There is a huge diversity of trades and processes which can cause events likely to cause liability
claims. A few examples are discussed below. Save for a few small risks, a survey should be done a
matter of policy so that the liability underwriter fully appreciates the nature of the insured’s business
before making a decision.
(a) Agricultural and allied risks
The following should be considered in underwriting these risks:
Size in hectares, divided between crops, grazing, timber and other land.

What public roads or servitudes intersect or adjourn the farm are firebreaks present?

Is the property fully fenced, and are fences and gates in good order? Animals may start into the
next farm and eat plants. They may stray into roads and cause traffic accidents.

Are there any special hazards on your land such as mines, quarries, tips, earth dams or other
bodies of water? Dams may burst, flooding property downstream.

Nature of any activities away from the farm, e.g. hiring out of labour to nearby farms

Crops sprays and weed killers used and how applied. Drift and surface water can carry these
onto a neighbour’s crops.

Any other business activities e.g. accommodation to visitors, farm produce sold to visitors or
horse riding lessons given
(b) Agricultural shows fetes and sports meetings
The underwriter should consider the following material features:
The type and intention of show e.g. a small community event or a large scale affair staged over
several days

The nature and capacity of seating stands. They may be permanent structures under the control
of a local authority or they may be a temporary erection of steel scaffolding and timber. The
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underwriter must find out the person who carried out the job and his experience and if he has
own insurance arrangements. Temporary structures have collapsed in some cases in the past
killing or injuring people.

What is to be exhibited, e.g. animals or working machinery, needing precautions to keep visitors
at a safe distance

The catering arrangements, e.g. are there individual stallholders or is the catering offered by
contractors, and existence of any insurance

Car parking arrangements e.g. are the organiser responsible or is public parking used. If there
are parking attendants who controls them? Disclaimer notices should be displayed where they
can be readily seen by the public. The number of vehicles influences the premium.

Any other attractions e.g. animal rides, a fun fair, a fireworks display. Such work may be in the
hands of independent contractors and a check would be made on the nature of the contract with
them and whether they hold insurance.
(c) Catering and entertainment risks
Catering ranges from a small kiosk to a full scale restaurant. There is risk of claims for food poising,
and products liability like take-aways.
Some claims arise from clothing torn by defective seats or injuries by tripping on defective floor
coverings or slippery surfaces. In an example involving McDonalds, the American fast food chain, paid a
substantial compensation to a customer to a customer who spilt hot coffee on her lap.
In places where people gather in large numbers, the main catastrophe is the possibility of panic ensuing
upon fire. The adequacy of emergency exits and emergency lighting is of utmost importance.
In sports stadia, arrangements are made to regulate the entry of spectators. Usually these
arrangements are unsuited for rapid exit in an emergency or panic situation. Remember the crowd
trouble at the National Sports Stadium in 2002 in Harare. More than ten deaths occurred when there
was a stampede as a result of use of teargas by the police – the exit points were allegedly locked or
insufficient.
In underwriting liability risks of entertainment risks the underwriter should also consider the age,
construction and seating capacity of stands and the speed with which they can be emptied in an
emergency.
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(d) Chemicals, oils and gases
The extensive use of toxic, flammable and explosive substances poses severe risk o f property damage
and injury and great care is needed in underwriting. Apart from the more familiar hazards, there are new
chemicals and mixtures marketed under trade names, and it may be necessary to refer to the supplier
for details and precautions regarding safe use and storage.
Some substances are relatively safe on their own, but very dangerous in combination with others or
certain circumstance. For example, burning sulphur stockpiles can release fumes that can combine with
rain to form sulphuric acid. This can fall over a wide area damaging crops and injuring people.
Liquefied petroleum gas (LPG) is a convenient fuel extensively used in industry, the home and leisure
activities. However, LPG is highly flammable and a leaking cylinder can lead to a rapidly spreading fire.
Care should be taken in storage of LPG and storage cylinders should be stored upright and safe from
tampering. The cylinders should be stored away for heat to avoid explosions.
6.4 Contractors
This includes civil engineers, builders, road and sewer contractors, plumbers, painters and similar
trades. Risks range from the one man jobbing builder to the large international contractor engaged in
major civil engineering and construction,
6.4.1
Policy cover
Indemnity will be for the following:
Work done in the past. In Sharp v Sweeting and Son Ltd (1963) a canopy fell several years after it
was erected and injured a third party. The erection was defective and so the contractor was liable.

Liability for advice given, resulting in injury or damage – many large contactors operate on a design
and build basis.

Liability for goods supplied – a contract normally supplies and erects, but may only supply

Damage to surrounding property – this exposes insured to special risks, such as removal and
weakening of support, must be taken into account.

Use of plant, owned or hired in

Indemnity to principals and other involved in the contract
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
Liability by agreement – the policy does not exclude liability assumed by agreement, e.g. in the
case of the insured contracts, subcontracts and agreement for the hire or loan of construction plant.
At times some plant hire contracts have to be entered at short notice and involve serious
responsibilities. The contractor needs this automatic cover.
6.4.3 Exclusions
Normally, the policy will not cover:
Property in the custody and control of the insured

Property being worked upon, and arising out of the work

Making good defective work or replacing materials
6.4.4
Underwriting considerations
In addition to location, nature of premises and use of heat the following additional aspects must be
considered:
(a) Damage to property in the ground
Sewers, telephone and electricity cables, gas pipes and water mains may be damaged by mechanical
excavators or even by picks and shovels. Damaged gas mains may cause explosions, damaged
electricity and telephone cables involve substantial consequential loss claims. Repair of cables is very
expensive. An excess is usually applied to the “ground” risk.
(b) Demolition work
Large scale demolition, sometimes involving the use of explosives is usually undertaken by specialist
contractors, but smaller jobs might form a necessary part of the construction contract.
(c) Rubbish skips
Care must be taken that these do not cause an obstruction. An unlit skip left on a road at night is a
danger.
(d) Excavations
Unguarded and unlighted excavations are a danger to pedestrians and motorists. Heaps of earth by the
roadside is also encountered. The length, width and depth of excavation are also relevant.
(e) Civil engineers
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Their work includes road and sewer construction, bridges, harbours and dams and may involve
tunnelling danger of collapse, damage to underground services) diverting existing water courses, with
risk of flooding especially during the rainy season.
The use of explosive for blasting rocks may cause injury or damage from flying fragments or vibrations
(shock waves).
Bridge construction is matter for specialists and calls for technically qualified supervision at all stages.
Very high indemnity limits are essential on account of the catastrophe hazard.
(f) Plant hire contractors
Plant hire contractors have a liability for defects in the plant they hire out, and for the negligence of their
employees.
(g) Developers
Developers might purchase or lease land and design the structures to be erected. The work might
include landscaping and access roads within the development property. They might do all or part of the
actual work or sublet this to contractors or labour only sub-contractors. The developer’s policy should
cover all anticipated liabilities.
(h) Garages and filling stations
The usual motor traders’ policy covers the motor risk on and off the premises. A public liability policy
may be required to cover the ordinary premises liability and extend this to include products liability
(spare parts sold, and take-away refreshments) and defective workmanship.
(i) Hospitals, clinics and nursing homes
In addition to professional liability already discussed in chapter 5, hospitals may incur additional liability
from:
Defects in premises, plant and equipment – plant must be well maintained.

Negligence of ordinary staff

Contaminated foodstuffs, medicines or other substances supplied – there must strict security
and control over storage and issue storage of drugs

Loss or damage to the patient property
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
Spread of infection
Premiums can be based on the number of beds. Outpatient treatment must also be taken into
consideration. Alternatively, premiums may be based on fees charged.
(j) Hotels and other accommodation
Hotel keepers have a liability for loss or damage to property given into their custody, unless due to
casus fortuitous or vis major. However, they usually limit their responsibility in terms and conditions
the guest accepts when signing the register and often stipulate that any valuables should be handed in
for safe custody.
Hotel keepers have a law common duty of care to avoid death and injury to their guests and property.
They must maintain their premises in a reasonable condition.
(k) Municipalities and local authorities
The various departments making up a local council create a diversity of risks with potential liabilities
attaching to each, e.g.

Clerical and treasury departments – basically office work

Halls – problems associated with places of public entertainment or where a large number of
people are present.

Construction and maintenance – this is where most liabilities arise e.g. unprotected drains.

Inspection work. Local authorities are responsible for drafting local bye-laws and carry out
health and safety inspections. There is a potential liability in the event of negligent inspection by
council’s substations.

Water, gas, and electricity supplies. Contaminated water, spreading of infection, unsafe
conditions at electrical substations.

Parks and open spaces - swings and roundabouts for children, water bodies are a potential
source of liability.

Libraries and museums – risks associated with public places, particularly when children are
involved.

Fire brigade, and municipal security officers, including traffic control.
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
Entertainment – liability may arise from amenities such as picnic and camping sites, change
rooms and ablution blocks and swimming pools.
Because of the diversity of risks, the insurer may draw up a questionnaire to gather information on the
risks. A general survey is also advisable. Many insurers prefer an adjustable premium basis or a rate on
pay roll and a proportion of the payments to outside contractors.
(l) Quarries and sandpits
A survey is essential and the report and proposal should disclose:
The situation of the quarry in relation to roads, footpaths, third party property and third
parties in general

The adequacy of fencing to stop people and animals from straying onto the people,
especially during blasting. The operator owed a duty of care to both visitors and trespasser.

The nature of materials quarried

The nature and type of explosives used, the size the charges, the storage arrangements,
and the experience of the blaster

The nature and type of machinery and plant used, including ancillary processes such as
crushing or screening

The place and manner of loading vehicles, and whether these are the insured’s own or the
property of third parties.
Premiums could be based on wage roll or turnover.
(m) Riding schools and riding establishments
Risks arise from ownership or occupation of premises, injury to pupils and others or their property
arising our riding of horses. Premiums are based on the number of horses and also the number of
competitive events.
(n) Schools and colleges
The school authorities have a duty of care to visitors and learners. However, the main source of liability
is injury to learners. Boarding schools are at risk 24 hours a day and there is food and drink risk. A
survey is always advisable. Premiums usually depend on the number of students.
(o) Security firms
The liability of these firms for loss or damage following failure to carry out their undertaking to guard the
property is potentially heavy. The underwriter must consider whether the firm is a member of a
recognised association, their experience and claims record, use of dogs and firearms training.
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(p) Theft, fire, and sprinkler systems
The alarm or sprinkler may fail to work when it should. An installer or manufacturer is open to claims for
defective products or faulty installation. There is a heavy loss potential and the liability should be aware
of this and rate accordingly.
(q) Satellite tracking and vehicle recovery systems
The effectiveness of these depends largely upon:
The spread of territory covered

The effectiveness and speed of the response and recovery

The expertise of the installation
Some anti-theft and anti-hijack systems offer the facility of remotely controlled engine immobilisation.
Liability arises from faulty installation or operation of the device.
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CHAPTER 7
CLAIMS HANDLING
7.0 Introduction
A short term insurance policy is a contract to pay money. The contract, subject to certain terms and
conditions, provides indemnity to the insured on the happening of an insured event. The administering
of indemnity in terms of a liability policy is no exception. The claims administrator must have intimate
knowledge of the policy contract wording and the law of liability. The claims administrator must have
knowledge in the way law is administered by the courts i.e. the processes and some rules of the
Magistrate’s and High Courts.
The claims administrator must be able to instruct laywers and consult advocates and a number of
relevant experts to assist him in processing the claim in terms of the policy in equitable manner and in
terms of the law.
7.1
Claims Notification and Investigation
(i) Notification
(i)
Liability claims are notified like any short term insurance claim. The claim is registered and a
claim number allocated. With the widespread use of computers in commerce this may be done
on a computer system. The computer system allows for the recording of statistical information
as well as payments and estimates. A claims folder is opened which should also contain the
basic details of the policy to help the claims administrator in processing the claim in terms of
the policy.
(ii)
The claims administrator should that the policy in force.
However, he should note that:-
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
It is a liability claim and the notification may possibly be made even after the policy has
been cancelled or lapsed

In the case of claims incurred policies, he should check, that the policy is in force at the
time when the incident that gave rise to the claim took place

In respect of made policies, he should check that a policy is in force when the notification
is made and that the incident that caused the claim occurred after the retroactive date
indicated on the policy schedule.

He should remember that an insured incident reported during the period of insurance – a
claims made policy will respond in similar way to a claims incurred policy.
(iii)
He must obtain full details of the incident. In more serious cases it is better to appoint
adjusters or investigators and even attorneys to investigate and obtain information.
(iv)
In common law a plaintiff does not have to notify the defendant of an accident or even his
intention to claim damages. It is advisable for the plaintiff to start the legal proceedings within
the statutory period before the claims is time barred.
The insurer in some cases becomes aware of the claim when action against their insured has
commenced, which may be years after the incident. The wording of all liability policies on the market
provide that the insured must report in writing any incident “that may give rise to a claim” and also
specifies that this must be done immediately or “as soon as practicable”. Failure may have serious
repercussions for the insured as payment of claim is subject to the observance of all the terms and
endorsements of the policy.
Implications of notification provisions
(e) Early reporting enables the insurer to investigate while evidence is still available and to make
decisions about any intervention needed, e.g. representing the insured at hearings, etc.
(f) If notification is delayed, any investigation or handling of the claim must be done on a “without
prejudice” basis. The insurer must notify the insured of this position, if he does not he may be
estopped and will be unable to decline the claim.
(ii) Investigation
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Time is of essence in claims notification and administration. Investigations must be carried out as soon
as possible before the scene of incident alters. Information and evidence may be very difficult later e.g.
physical evidence and witnesses can and do disappear.
(iii) Witnesses
When a claim form or report discloses names of witnesses, written statements should be obtained from
them. It is advisable to obtain a detailed written and signed statement from the witnesses on first
contact. This ensures that the information is complete and useful.
It is very important to ask the correct leading questions and the claims administrator may need the help
of loss adjusters, investigators or lawyers when taking statements from witnesses. Most people are
reluctant to come forward and act as witnesses to court cases and as a result will say they did not see
what really happened. However, it may be advisable to get their written and signed statement to that
effect to ensure that their evidence cannot be used by the other side as they can change their mind.
Whenever, litigation is inevitable, all the available evidence must be tightened up and any evidence
previously collected reviewed. The witnesses may have to be re-interviewed where necessary. Any
conflicting evidence must be reconciled well before the case is due in court.
(iv) Technical experts
The advice of technical experts is indispensable due to the complexity of machinery and equipment in
both industry and commerce. Most production and control processes are electronically controlled and
computerised. Assistance should there be obtained from suitably qualified and experienced experts as
general reports from investigators may be inadequate in some instances.
Expert advice, dependent on the nature of, may be obtained from mechanical or electrical engineers,
civil engineers, metallurgists, accident reconstruction experts, specialists employed at manufacturers,
actuaries, forensic accountants, medical specialists, etc.
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When an accident is caused by or alleged to be as result of a defect in plant or machinery, the
damaged part must always be preserved as evidence.
Serious accidents, e.g. explosions, accidents involving loss of life, aircraft crashes, accidents involving
lifting and hosting apparatus, including passenger and goods lifts and escalators, are subject to official
enquiry in terms of the various statutes applicable. The claims administrator should make efforts to
obtain a copy of the record of such enquiry as this may help make a decision on liability without much
personal investigation. Where official enquiries fail to take place or seem to take forever, the insurer is
advised to carry out their own enquiries.
(v) Sketch plans and photographs
A picture tells a thousand words (Chinese proverb. It is therefore critical for the claim administrator to
obtain scale plans, maps or sketches, photographs and video recording of accidents especially those
involving machinery and land vehicles.
(vi) Admissions of liability
All liability policies condition a condition stipulating that the insured must make no admission of liability,
expressly or implied without the permission of the insurers. Insurers have subrogation rights in terms of
the policy in all matters relating to the claim.
This includes the defence or prosecution of the claim as well as the settlement thereof. The insurers
have the right to conduct litigation in the name of the insured whether in defence or prosecution of a
claim.
These conditions are meant to conduct claims to the mutual benefit of their insured and themselves
within the framework and limits of the policy. Insurers have the best legal advice at their disposal and
they are likely to defend the case better the insured and only pay for amounts arising out of actual legal
liability and nothing else. However, the insured remains responsible for any payments motivated to
retain businesses goodwill.
(vii) Medical evidence
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It is essential to have a medical examination of the injured person in all liability claims for personal
injury. This must be done as soon as possible by doctors appointed by the insurers. Where this is not
possible, e.g. in the event of serious injuries, an early examination made without prejudice is a sensible
business precaution.
7.2
Handling Procedures
(a) Review of evidence
When all the preliminary information and evidence is available, the insurers then decide on the future
course of action. When considering evidence, the golden rule is that everything must be critically
questioned. Only direct evidence is admissible in court not hearsay.
In deciding the future course of action they must:(g) Consider the position regarding the liability of their insured to the claimant and also their liability to
indemnify their own insured in terms of the policy
(h) Make the decision as soon as possible, and where they cannot hey should advise the insured to
proceed as if he were uninsured e.g. where there is a dispute between insurer and the insured or if
claim is notified late.
(i) Advise the insured to pass the summons to the them immediately where the issue of summons is
inevitable or threatened. This is critical because summonses are issued with time limits ranging from
3 days to 21 days.
(j) The claim administrator must pass on the summons and claim papers to the insurer’s legal
department with instructions on their requirements. Unless where liability is to be denied or amounts
claimed are outrageous, this may be the most ideal time to commence negotiations for settlement
without prejudice.
(b) Denial of liability
During the early stages of the claim, no action should be taken which is likely to unduly antagonise the
third party or spoil the opportunity for cordial negotiations. However, this is easier said than done as our
legal system is intimidatory in nature and society at is becoming more litigious and keen to take legal
action. Claimants often have unrealistic expectation of value of their claim, fuelled by what they pick
Page 58
from the media, e.g. astronomical amounts in punitive damages awarded by jury trial in American
television series.
The insurer should not take a firm and uncompromising denial of liability before enquiries into the
circumstances surrounding the accident are complete. Denial of liability should only be made after
careful consideration of all evidence available and communication entered into should be on a without
prejudice basis.
(c) Without prejudice
This means that any action taken by the insurer is not to be taken as admission of liability. Any
correspondence written on an without prejudice basis, to the either the insured or claimant, should be
clearly endorsed “without prejudice” and kept as part of the evidence to be used in court.
In 1906, the previous Chief Justice of South Africa explained the words, in the case of De Beers’ v
Epling, to mean without prejudice to the rights of the person making the offer in case the offer is
refused and they include an obligation not to make use of the offer if it is not accepted. The implication
is that letters written without prejudice should not be put in evidence except by consent. The objective
or rationale of the rule is to encourage litigants an opportunity to discuss and even settle the matter out
of court without fear of having their statements use against them in a court of law.
(d) Early settlement
Early settlement of third party claims claim help avoid unnecessary, lengthy and very expensive law
suits. However, this does not mean the claims administrator must settle claims at all costs to avoid
summons. Only claims involving reasonable amounts need to be dealt with as soon as possible.
(e) Delayed settlement
It is not always easy to pay all claims promptly. For example, claims involving serious injuries cannot be
settled until the claimant’s condition has fully stabilised and a reliable prognosis can be made. Any
payments made may be incorrect estimates and be advisable to delay payment.
7.3
Claims negotiation
(a) Negotiating a settlement
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The successful negotiation of liability claims depends much on the degree of preparation before
discussions for settlement. It is advisable for the claim administrator to have full facts about the incident.
This helps in forming informed decisions and compromises in the negotiation process.
(b) Techniques of persuasion
The objective of the claims negotiator is to persuade the ‘opposition” to modify its views so that broad
conformity is reached between the contending parties, i.e. the insurers and third parties or their
representatives.
The following techniques could be used by the claims administrator to change the attitude of claimants: By arranging the evidence to the insurers’ best advantage
Where an insurer exercising subrogation rights has a reasonably good defence, an exchange of
statements on a without prejudice basis is suggested.

By casting doubt on counsel’s opinion
This allows reassessment and modification of opinion on quantum.

By seeking the claimant attorneys’ figure for settlement
The objective is to get an indication of what the third party‘s expectation as a minimum
settlement.

By the “loss leader” gesture
This allows for making of concession on dubious special damages items as a gesture of
goodwill. This may create a conducive atmosphere for negotiation on the more expensive
general damages.

By raising complicated legal points
Useful legal points on liability claims include the duty of care and effect of either the plaintiff or
defendant or both as well as the complicated apportionment of damages.

By playing down the effects of photographs
Clinical photographs taken during operations and used in claims on personal injury can appear
shocking, but the claims administrator should bear in mind that the claimant’s condition could
have vastly improved since they were taken. This point should be raised during the discussions.
(c) Psychological points

Experience has that the willingness of litigants to conclude outstanding litigation is subject to
seasonal factors. For example, just before Christmas and long adjournment at the end of the year,
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litigants are often keen to dispose outstanding cases and are more willing to settle. An offer
previously rejected may well be accepted by formulating a slightly improved offer.

Experience, has also shown that it is often possible to reach a settlement just before trial. At this
time the parties involved are faced with heavy trial preparation costs and be more prepared to
“discount” their risks than at any other stage.

There are inherent risks in any court action. Unexpected information may materialise or a witness
may not fare well in the box. Perhaps counsel for one of the sides may make a compelling
argument and sway the judge in his client’s favour. Litigants are better advised to concede say
20% of their claim to reach a settlement out of court.
(d) Tone of correspondence
The adversarial nature of our legal system makes it very difficult to avoid and uncompromising attitude
in dealing with opponents in a claim in delict. However, there is very little to gain from such an attitude
at the beginning of the case. The claim administrator should be polite and professional and keep the
communication channels open for possible future negotiation.
(e) Attitude to opponents
In today’s increasingly litigious society, the claim administrator should never underrate the claimant.
Unfailing courtesy is essential at all times. A display of personal feelings must never be allowed to
intrude, even when some pride and satisfaction is justified when a matter is concluded on favourable
terms.
(f) Consistency
All claims should be dealt with in a consistent in order to avoid unnecessary, lengthy and expensive
settlement negotiations. Bargaining when negotiating may be unavoidable, but the claims administrators
should avoid the temptation to get carried away. It may be advisable to be a little generous in some
instances which can easily be recovered in other more flexible negotiations later. If the lawyer
representing the client shows sincerity by laying his cards on the table the insurers should reciprocate
for the benefit of both parties.
(g) Quantum
Claims values for most liabilities insurance policies are a subject of negotiation because of the
divergence of opinion that often exists regarding the true value of a claim. Negotiation has to be done
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with sincerity without unnecessary prejudicing or antagonising the claimant. This should take into
consideration the vast legal precedents on similar claims. The claims administrator should keep himself
updated of developments in this field e.g. Zimbabwe and South African Law reports, Quantum of
Damages (a specialist publication) by Corbett and Buchanan, which is update yearly. The importance of
using experts cannot be over emphasised, and the claim administrators should seek their assistance
always.
(h) Policy limits
When a claim is notified and there are indications that the limit of indemnity as stated in the policy is
likely to be exceed the client should be informed immediately. This could occur the loss exceeds the
sum insured or the sum assured available has been reduced by previous indemnities paid.
(i) Discharge/release
When the claim has been admitted for payment, whether out of court or not the insurer must obtain a
signed discharge form from the claimant before disbursement of any claim proceeds. The discharge
form should be carefully and clearly worded to release the insurer from further liability on the same
claim, e.g. payment of the amount stated herein represents the final payment and releases the insurer
from further liability.
(j) Payment with denial of liability
These include ex gratia payments and should be accompanied by a statement to the effect that the
payment is made without admission of liability on behalf of the payer, which can be insurer or insured.
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CHAPTER 8
LEGAL ASPECTS AND PROCEDURES
8
Introduction
The claims administrator must be able to instruct lawyers and consult advocates and a number of
relevant experts to assist him in processing the claim in terms of the policy in equitable manner and in
terms of the law. He must also be able to calculate and set reserves, both for the purposes of reserving
and quantifying claims and for the purposes of settlement.
The above aspects are dealt with below:
(a) Litigation
Serious thought must always be given to any claim that may possibly become the subject of litigation, in
view of the cost and cost and the uncertainty of the outcome of legal actions. Even when the
defendant’s case seems a good one, the expected may still happen and the verdict can go in favour of
the plaintiff may be the result. Even after the defendant is successful and cost is awarded in his favour,
he may not be able to recover anything simply because the plaintiff lucks the funds to pay. To this end
it may sometimes be better to try to settle a claim for a small sum, known as “nuisance value” rather
than contest the matter. Such an offer should only be made if it is reasonably certain that plaintiff’s
lawyers will go ahead with the issue of a summons if no offer is made.
Before starting out on litigation, insurers usually obtain an opinion from their lawyers and counsel on the
merits of their cases and the prospects and desirability of contesting a case. If it decided to go to
litigation must start within a definite period from the time the action arose. In most civil cases this is
three years.
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8.1
The administration of civil justice
The administration of justice in Zimbabwe is divided between the various Divisions of the High and
lower courts.
(a)
Constitutional court
The Constitutional Court’s only function is to hear matters pertaining to the Constitution of Zimbabwe
and to interpret applications thereof. Matters can be referred direct but in practice, most cases are
referred to the Constitutional Court by High court judges if they are of the opinion that the point to be
decided on is of a constitutional nature. The other important duty of the constitutional court is that it
has to consider and certify the constitutionality of every new law passed by parliament.
(b)
The Supreme Court of appeal
Apart from the Constitutional court, this is the highest court in the land. It is based in Harare and only
hears matters on appeal from Divisions of the High court. It does not hear first hand evidence but
decisions are based on the documents and records of cases and legal argument presented to the court
by counsel appearing for the parties. The party that appeals is called the appellant and the party
opposing the appeal is called the respondent.
(c)
The High Court
The High Court is headed by a Judge President, assisted by a number of judges. It has jurisdiction over
all people and things. It also acts as a court of appeal from the Magistrate’s court.
(i)
Local divisions
Local divisions of the high court exist in areas where there is a considerable amount of work e.g. Harare
and Bulawayo. They are manned by judges.
(ii)
Circuit courts
Circuit courts are constituted in the various provinces and sit from region to region as designated by
the Judge President to assist members of the public who would otherwise have to travel long distances.
They hear mostly criminal cases.
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(d)
Inferior courts (lower courts)
The following constitute inferior courts in Zimbabwe.
(i)
Magistrate’s Court
These courts are constituted for districts all over the Zimbabwe. Civil and criminal cases heard by
magistrates. At the time of writing the jurisdiction in civil cases is restricted to USXXXXXX.
Although the High Court has jurisdiction over all people and things in their area, the magistrate’s court
is restricted to certain criminal matters and in respect of civil not involving amounts in excess USXXXX.
Also magistrate’s court cannot order specific performance, hear divorce or issue interdicts.
There is an automatic right of appeal from the lower courts to the High court
(ii)
Small claims court
To speed up the process and alleviate the load on the courts, provision has also been made for small
claims courts in all cities and towns, which hear civil actions involving sums up to an amount
(currentlyXXXXX)
8.2
Documents and Principles in Civil Litigation
(a)
Basic concepts
The presiding officers of the High and Constitutional are called judges and are addressed as “my lord”
or “my lady” as the case may be. The magistrate’s court is presided over by a magistrate who is
addressed as “your honour”.
All cases are heard by presiding officers. There are jury trials in Zimbabwe. In serious cases, a judge
may appoint assessors, usually retired senior magistrates advocates to assist him.
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The magistrate’s court is a creation of statute and magistrates are paid civil servants. Judges in High
and Constitutional Courts are appointed by the President from the ranks of senior practising advocates.
(b)
Summons
This is a legal document that is issued out of either the Magistrate’s or High Courts, as the case may
be. It is served by the messenger of court or sheriff respectively and directs the defendant to enter an
appearance to defend the action that is instituted by the plaintiff against him. This document notifies the
defendant that, in the event of his failure to defend the action, judgement may be taken in his absence.
This is known as judgement by default.
(c)
Entering an appearance
A summons clearly states the time allowed to enter an appearance to defend. Notice must be served to
enter appearance to defend within the period stipulated and within a further 21 days (court days are
working week days excluding weekends and public holidays).
(d)
Pleadings
All formal documents that are filed following the serving of a summons are collectively known as
pleadings. These documents include:
Notice to enter an appearance to defend an action

Request for further particulars of claim

Plaintiff’s plea

Notice of set down

Discovery affidavit

Notice in terms of the various Rules of Court.
Once the parties involved in the action have filed a plea, it is said that “pleadings have closed” (as the
parties have broadly stated their case). At this stage, the point of Litis contestatio is reached, which
means that the action can survive the estate and will transfer to his estate in the case of his death.
Filing of pleadings
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Al the pleadings, starting with the notice to enter appearance to defend, are filed on the court file and
the served (delivered and signed for) on the other party’s attorneys. The court file is a public document
and is available for inspection at the clerk of the Court’s office.
(e) Payment into court
In action for recovery of debt or in delict, the defendant can at any time after appearance to defend has
been entered, make a payment into court.
(f)
Third party notice
If the defendant is entitled to recover from another party, that party is brought in as a third party to a
High court sending a Third Party Notice. This notice is similar to a summons and appearance to defend
must also be entered within a stipulated period. The third party becomes a party to the action.
(g) Case set down for trial
Setting down an action consists of sending a request to the registrar of the Court to the effect that the
action is to be set down for trial at the place specified in the summons.
It is an indication by a party that they are ready to proceed to trial as soon as the court can hear the
case. A case can be set down by either part but this is usually done by the plaintiff.
The following aspects must be considered when a case is set down for trial:-
(h)

The action must be set down on a particular list (i.e. civil, divorce, etc)

Certain documents must be lodged at the time of setting down

Notice must be given to the other party
Discovery of documents
Once a case has been set down for trial, discovery of all relevant documents must be made to enable
both sides to properly prepare for the trial. This involves listing all the documents in a list in the form of
an affidavit attested to by the parties to the action.
(i)
Counsel briefing
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At this stage a decision is made on whether to instruct senior or junior counsel or both. Depending on
the degree of difficulty and amount of work, a junior counsel may have to be appointed to assist senior
counsel. This will increase trial costs substantially as the junior counsel is also paid.
(j)
Hearing of an action
The onus of proving the case rests on the plaintiff. Witnesses who may not attend voluntarily can be
called by means of a subpoena (witness summons). It is the duty of a witness to state the facts as he
knows them, and not to express and opinion unless he is an expert witness.
Plaintiff’s counsel opens the case by addressing the court, outlining the main features of the case. He
then calls his witnesses in turn box and they tell their story in answers to his questions. Crossexamination by the defence by the defence counsel usually follows.
(k)
Counsel for defence opens
At conclusion of the plaintiff’s case, counsel for the defence opens in a similar way and calls his
witnesses who are in turn cross examined by plaintiff’s counsel and may be re-examined by counsel for
the defence.
(l)
Closing speeches
After giving evidence is completed, counsel for the plaintiff sums up his case and counsel for the
defence replies. In the High Court, counsel will give a summary of the main points of their arguments in
support of their cases to the judge beforehand. This is known as “heads of arguments” and sets out
legal principles and case law relied upon.
(m)
Costs
In a civil action the court has discretion in awarding costs. The cost order follows the result of the case
and is awarded in favour of the winning party, if an apportionment is ordered; the cost order also usually
follows the same percentages as the apportionment. Bill of cost, as the accounts are known, are usually
drawn up by cost consultants, who are experts in drawing up the bills in accordance with tariffs laid
down in various courts.
(n)
Appeal
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If either party has reasons to be unsatisfied with the outcome of a case, he may lodge an appeal. In the
High court an appeal can only be granted with leave of the court. If this is not given, the Chief Justice
may be petitioned.
The path of appeal is, from the magistrate’s court to the High court and from the High court to a full
bench. This means three or five judges hearing the case together and deciding on a majority. Appeals
from decisions of the High court are head by the Supreme Court, under the control of the Chief Justice
of Zimbabwe, sitting in Harare.
The usual grounds of appeal are points of law and generally counsel’s opinion is obtained on the entire
judgement after careful consideration of any grounds for appeal. A matter on a point of law is more
likely to succeed than a matter of fact or evidence. The court of appeal will not have the benefit of
seeing and hearing the witnesses and it will be extremely reluctant to interdict with a credibility finding
for instance.
A decision to take a case on appeal must not be taken lightly because of the cost implications.
8.3
The effect of Time on Claims
Time can wipe out or extinguish a claim after the lapse of a sufficiently long period. Time can also
increase the cost or value of a claim to a defendant.
(a)
Prescription
Except where otherwise provided by statute, all delicts prescribe after three years, i.e. it becomes
unenforceable. Prescription is regulated by the Prescription Act. Specific regulations contained in
statutes such as the Defence Act, Police Act, Road Traffic Act, etc, override and impose different
periods of prescription some as short as 12 months.
An extension of prescription can be requested and will usually be given if asked for in time.
Points to note:
Prescription does not run against a minor. Minors have 12 months after attaining majority (18
years) to institute legal action. However, this is not in addition to the normal three years.

Prescription does not run against persons that are insane or under curatorship
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
Prescription does not run whilst a debtor is outside the country

Prescription is delayed by an admission of liability. It starts running anew for a further period
from the date of the admission
(b)

The serving of a summons interrupts and stops the running of prescription

Prescription can be extended by agreement
Escalation of value (over time)
Claims in respect of personal injury are always assessed and a value placed thereon by the court at the
time of the hearing. This means that in the case appears in court say in five years after an accident, the
claim is assessed by the court at that time to take into account the effects of inflation.
(c)
Interest on damages
Interest on claims for damages can be claimed from the date of judgement until payment in terms with
the Prescribed Rate of Interest Act. Defendants must assess the effect of possibly having to pay interest
at the going rate (currently XXXX) in addition to any capital amount for which they may be responsible.
This should encourage early decisions as to whether to settle or defend actions.
8.4
Claims Estimates and Reserving
The most important function of the claims administrator is the calculation, setting and maintaining of
estimated claims reserves.
If his estimates are high, it will force the insurer into making extra provision for heavy future payments.
This will tie up capital and restrict growth or even force cost cutting measures, e.g. closure of some
branches or forced staff retrenchments.
If his estimate is too low it will result in the insurer being unable to meet their obligations resulting in
bankruptcy.
(a)
Estimating and reserving for claims
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The Insurance Act Chapter 24:07 prescribes in sectionxxxxxx that value of liabilities of a short term
insurer....shall be determined in accordance with Generally Accepted Accounting Practice. The Act is
however, silent on the way in which this liability is to be determined. Although there are no rules laid
down on estimating reserves, the following commonsense criteria can be applied in making provisions
for outstanding claims:
(i) Completeness
A provision must make allowance for all claims that are likely to require future payments (i.e. IBNR
claims).
In respect of claims already opened, estimates should make provision for all payments that likely to be
made in respect of any item under the claim, including, but not limited to:
Liability in term of the policy

Legal costs (own and third party)

Fees in respect of adjustors and investigators

Fees for expert witnesses (medical, legal, etc)

Fees in respect of reports such as police, post mortem, enquiry, etc)

Architects’ and surveyors’ fees for claims involving fixed property.
(ii) Accuracy
The provision should be as practical as possible based on the information available and
properly motivated and reasoned expectations about the future of the claim.
(iii) Adequacy
The provision should be enough bearing in mind bearing in mind that overestimating is nearly
as damaging as underestimating.
(iv) Integrity
The provision should be genuine and not unscrupulously increased or decreased to hide profits
or disguise losses or outstanding liabilities.
(v) Consistency
The estimating process should be consistent from claim to claim and from one year to the next.
Any differences should be explained and justified to avoid unintentional over and under
provision for outstanding liabilities.
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(vi) Principal factors in estimating provisions
The principal factors in estimating outstanding claims provisions fall under three main headings:
Basic methods of estimating provision for outstanding claims, e.g. individual valuation and
average cost system or a combination of both

Safety margin ( to allow for contingencies)

Other features
(b)
Individual valuation
With this system, estimated provisions are set in respect of individual claims both for the current year
and prior years. It is impossible to accurately forecast the final cost of a claim. Reasons for this
challenge include:
-
The insured’s liability (at law) is not entirely clear
-
There could be contributory negligence and apportionment of damages may apply
-
Quantum of the plaintiff/ third part’s claim may be in dispute
-
If the claim involves personal injuries, the claimant’ condition may not have stabilised
-
Possible ligation could dramatically increase legal costs
It is advisable to set provision conservatively, i.e. making error on the side of caution and work on the
basis that every outstanding legal action can be lost and that every serious accident may result in
expensive permanent disability.
(c)
Average cost system
Comparative claims figures from year to year are sometimes used and averages determined. This is
called the average cost method system for estimating current claims. Figures for at least three years
(factoring in recent trends) should be used in determining the estimate. Amounts already paid should
then be deducted from the estimate to balance should be the reasonable estimate to be provided for the
outstanding claims,
(d)
Combination of both methods
An insurer can also use both the individual valuation and average cost systems in estimating provisions
for current and previous year’s claims.
(e) Safety margin
Provisions for outstanding claims are based on estimates it is therefore prudent to allow for a margin of
safety. In addition contingency and IBNR claims reserves should be provided for. The claims
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administrator should avoid both grossly overestimating and underestimating the provision to cover
unforeseen contingencies.
(f) Other features
When all individual estimates in respect of outstanding liability claims have been made, certain
adjustments may still be required and provision made accordingly. These include:
Incurred But Not Reported claims (IBNR)
After the close of a year, there were be claims that have occurred but have not been reported.
There will also be liabilities that in due course will give rise to “claims made” claims. These are
known in the industry as IBNR claims. Historical claims experience should be used in estimating the
additional reserve

Reopened claims – certain claims may need to reopened and additional provision should be made
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