Guardrisk ordered to pay Ferrari owner R1.82m

Guardrisk Insurance Company has been ordered to pay a Ferrari owner R1.82 million and was issued with a punitive cost order by the High Court in Pretoria. This comes after it repudiated the owner’s insurance claim on the basis that the car was being driven recklessly.

Sashin Govender lodged a civil claim against Guardrisk when it repudiated his claim, after his red Ferrari California was “catastrophically damaged beyond repair”.

It collided with a lamp pole in rainy weather along William Nicol Road in Fourways in Johannesburg, on the evening of 22 February 2019, with the front end of the vehicle separating from the body on the passenger side, almost splitting the vehicle in half.

Govender and his mother, who was travelling with him in the car at the time of the collision, did not suffer any serious injuries.

Guardrisk’s repudiation of the claim was based on its view that Govender had been travelling at an excessive speed in inclement weather.

It claimed the speed at which the vehicle was travelling at the time of the collision had been so excessive that Govender was regarded as having been reckless, thereby breaching a clause in his policy and was therefore not entitled to compensation in terms of the policy.

The excessive speed Govender was allegedly travelling was 134km per hour, with this alleged speed determined by a Guardrisk expert.

Govender testified he had been travelling at a normal speed, with his mother corroborating his evidence in regard to the inclement weather and his driving in a reasonable and safe manner.

His evidence was that he had pulled off from the traffic light and passed under the bridge at Witkoppen Road and was travelling at about 80km per hour when his vehicle suddenly pulled to the left.

He instinctively corrected by steering to the right and at that stage lost control of the vehicle and it spun a number of time before eventually coming to a stop after colliding with a lamp pole.

Govender did not know what had caused the vehicle to pull to the left and assumed it had been water on the road as a result of the inclement weather.

Guardrisk assessor Mr Giezing interviewed Govender a few weeks after the collision and was told the Ferrari had been travelling at about 100 km per hour.

Giezing said although he is not an expert in either speed or the assessment of damages, the extent of the damage to the vehicle was a factor that led to him recommending that Guardrisk appoint a Mr van der Merwe to investigate the speed of the vehicle.

Arrangements were made with Govender for the “black boxes” in the Ferrari – computer modules that record real time data on the performance of the vehicle, speed and other technical data – to be made available to Van der Merwe for examination.

One of the boxes was irreparably damaged and of no value, but the other was undamaged and handed to Van der Merwe. But he was unable to access any of the data because Ferrari, as the manufacturer, is apparently the only party that can access the data and it was unwilling to assist.

Judge Anthony Millar said Van der Merwe did not have any black box data but nonetheless proceeded to prepare a calculation predicated entirely upon the “tensile strength” of the material from which the Ferrari was manufactured.

Judge Millar said that using this approach, Van der Merwe was able to reach the conclusion that Govender had in fact been driving in excess of the 80km per hour speed limit at 135km per hour.

He said the cusp of the issue for determination was whether, having regard to the prevailing weather conditions, Govender had been travelling at a speed which was so excessive that it amounted to recklessness.

He said a qualified expert, a Mr Grobbelaar appointed by Govender, testified that it was not possible for him to express an opinion that Govender was not driving at 80km per hour or was driving at a speed above that.

Grobbelaar said the likelihood was that water was flowing across the road at the time the collision occurred.

When he met Van der Merwe, they both agreed the effect of water on the road surface, even in small amounts, can cause hydro- or aquaplaning, which is where a vehicle’s tyres lose contact with the road surface as a result of the water. Grobbelaar believed this was the probable cause of the loss of control of the vehicle.

During his testimonial on the damage to the vehicle, Grobbelaar said Van der Merwe had failed to disclose the basis upon which he had calculated the tensile strength of the metal in the Ferrari, despite being asked to do so.

Various reasons were given to him for this, including that Van der Merwe’s computer records had become irrecoverable.

Judge Millar said counsel for Guardrisk was able, during Grobbelaar’s evidence, to consult with Van der Merwe, who was present in court.

Judge Millar was informed from the bar that no part of Govender’s Ferrari had been examined or tested to determine tensile strength.

Van der Merwe had used a European Union standard measurement, which is apparently derived from the testing of wheel rims by Mercedes Benz AG in Germany.

Van der Merwe was unable to provide an answer when the court inquired from Guardrisk’s counsel whether or not the wheel rims were made of the same material as the Ferrari or whether they had been manufactured in Italy. This resulted in Guardrisk indicating it would no longer be calling Van der Merwe as an expert.

Judge Millar said despite the inclement weather, there was no evidence before the court to establish that Govender knew or foresaw that the road conditions could cause him to lose control of the vehicle.

He said the parties agreed it was only a finding of recklessness that would absolve Guardrisk from liability under the policy.

“Having regard to the particular facts in this case, there is to my mind no question that the plaintiff [Govender] did not act recklessly.”

Govender requested a punitive order for costs against Guardrisk.

Judge Millar said ordinarily this is not warranted, where expert witnesses disagree and the court prefers the evidence of one over the other in determining the dispute.

But Judge Millar said the entirety of Guardrisk’s case focused and hinged upon the opinion of Van der Merwe and Govender was put to the trouble and costs, which were entirely avoidable, of briefing an expert witness who was then unable to elicit from Guardrisk’s expert witness the very basis upon which his opinion had been formulated.

“It is patent that Mr van der Merwe was not an expert in the field that he claimed to be and that his opinion was never going to withstand the scrutiny of interrogation in court.”

Judge Millar said Govender ought never to have been forced to court on the basis that he was. The judge also ordered that the costs of Govender’s experts must include the cost of their attendance at court for the trial but not be limited to the costs recoverable in terms of Section 4 of the tariff applicable to witnesses in civil matters as set out in Government Gazette No. 30953 (R394) of 11 April 2008.