SANLAM AG Plc v BIZIMANA

# SANLAM AG Plc v BIZIMANA

- Source: Amategeko - Section: Decisions (Judgements) - Date: 2025-03-28 - Case/document no.: RS/INJUST/RC 00005/2024/SC - Collection: Supreme Court

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SANLAM AG Plc v BIZIMANA [Rwanda SUPREME COURT - RS/INJUST/RC 00005/2024/SC (Hitiyaremye, J.P, Cyanzayire, Muhumuza, Kazungu, Kalihangabo, J.) March 28, 2025] Overruling precedent – Damages resulting from motor vehicle accident – Exemption from damages for intentional fault – For the insurer to be exempted from paying damages based on a statutory or contractual provision prohibiting insuring the intentional fault, he/she must provide evidence that the insured committed the fault with the intent to cause harm (faute intentionnelle). This new rule replaces the old rule was set by the Supreme Court in the Case of Kirehe District v SAHAM ASSURANCE RWANDA Ltd, currently known as SANLAM Assurances Générales Plc et Al, RS/INJUST/RC 00002/2021/SC, decided by the Supreme Court on 30/12/2021 [Reported in RLR V.4.2023] which stated that the insurer is not liable for the faults of the insured knowingly and intentionally committed. Civil Procedure – Damages resulting from motor vehicle accidents – Liability – Liability arises from a deliberate or unintentional act, which obliges the wrongdoer to pay for the damage caused to others; and such a liability is insured. Civil Procedure – Damages resulting from motor vehicle accidents – Strict liability – Strict liability arises from the intentional fault of the insured, which is committed with

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the intent to cause harm (faute intentionnelle) – Even if a person knowingly committed a fault, it is considered intentional only if it is clearly established that the person who committed it had a deliberate intent to cause harm. Civil Procedure – Damages resulting from motor vehicle accident – Fault committed by the injured party which results into not being awarded damages – A fault that excludes the injured party from damages is the one that was the actual cause of the accident (i.e. 100%), as well as the one that the injured party committed intentionally with the intention of causing the accident – Law n0 41/2001 of 19/09/2001 determining compensation calculation modalities for people injured or whose property has been damaged by automobiles, article 2. Facts: Bizimana was injured by a motor vehicle insured by SANLAM AG Plc, resulting in a permanent disability of 48%. He wrote to SANLAM AG Plc requesting for damages, but the company refused to pay him as he was the cause of the accident as he admitted to be transported in the loaded rear box of a vehicle. This prompted Bizimana to file a lawsuit with the Intermediate Court of Rusizi seeking for various damages. The court ordered SANLAM AG Plc to pay him a total of 5,786,030 Frw of damages. SANLAM AG Plc appealed to the High Court, Rusizi Chamber, arguing that they should not be liable for damages because Bizimana was the actual cause of the accident, and the driver of the vehicle had deliberately made the mistake of transporting him in a place designated for the carriage of goods, knowing that this

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was prohibited. The High Court declared their appeal unfounded, upholding the damages awarded in the appealed case. SANLAM AG Plc requested a review of the case on grounds of injustice, raising the same grounds as it had presented during their appeal, their application was granted, and the case was heard by the Supreme Court, which examined the issue of whether SANLAM should be liable for damages arising from the accident in which Bizimana Védaste was injured. SANLAM AG Plc argues that it is not liable for damages arising from the accident on the grounds that the driver of the vehicle that caused the accident made a deliberate mistake by allowing a person to transport him in the loaded rear box of a vehicle knowing that it was prohibited and the fact that Bizimana was the actual cause of the accident in which he was injured. Bizimana argues that he should be compensated on grounds that the insurance coverage extends to the liability of the motor vehicle owner and driver, and that insurance should cover accidents involving individuals transported in the vehicle, regardless of the circumstances. Held: 1. Liability arises from an act committed either intentionally or unintentionally, which obliges the wrongdoer to pay for the damage caused to others; such liability is covered. 2. Strict liability arises from an intentional fault of the insured, which is committed with the intention of causing harm - Even if a person knowingly committed a fault, it is considered intentional only if it is clearly established that

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the person who committed it had a deliberate intent to cause harm. 3. Strict liability arises from an intentional fault of the insured, which is committed with the intent to cause harm - Even if a person knowingly committed a fault, it is considered intentional only if it is clear that the person who committed it had the intent to cause harm. 4. A fault that excludes the injured party from damages is the one that was the actual cause of the accident (i.e. 100%), as well as the one that the injured party committed deliberately with the intent to cause the harm. Application for review of the judgment on grounds of being vitiated by injustice is unfounded. Statutory and statutes referred to: Law no 41/2001 of 19/09/2001 determining compensation calculation modalities for people injured or whose property has been damaged by automobiles, article 2 Decree-Law n° 32/75 of 07 August 1975 on compulsory civil liability for motor vehicles, as amended by the Law n0 02/2002 of 17/01/2002, article 3; Decree-Law n° 20/75 of 20/06/1975 relating to insurance in general, article 11. No case laws referred to. Authors quoted:

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Serge BRAUDO, Dictionnaire du Droit Privé, Définition de Responsabilité civile, p.1; Gerard CORNU, Vocabulaire juridique, 11ème édition, Puf, 1987, p.452; Georges Brière de L’Isle, Cour de Cassation, Recueil annuel des études 2023, A. L’identité des fautes intentionnelle et dolosive, Étude, p.1; Cour de cassation (France), deuxième chambre civile, du 16 Septembre 2021, n° 19-25.678, para 11et 12 ; Cour de cassation Belge, 23 FÉVRIER 2017, para 1 et 2; Cour de cassation Belge, 03 Novembre 2022, C.21.0407.F; CHRISTOPHER C. FRENCH (Director of Trial Advocacy Program and Professor of Practice at Penn State Law; J.D., Harvard Law School; B.A., Columbia University), Insuring Intentional Torts, OHIO STATE LAW JOURNAL [Vol. 83:6], p.1079-1080; Bernard DUBUISSON, Professeur ordinaire à l'Université catholique de Louvain, Professeur aux Facultés universitaires Saint- Louis, LA FAUTE INTENTIONNELLE EN DROIT DES ASSURANCES -L'ÉCLAIRAGE DU DROIT PÉNAL, Revue Générale des Assurances et des Responsabilités (2010), p.2, pt. 4; Yvonne LAMBERT-FAIVRE et Laurent LEVENEUR, Droit des assurances, 14ème édit., Dalloz, 2017, P.318; Hubert GROUTEL, Code des Assurances, Annotations de jurisprudence et de bibliographie relatives aux “Responsabilités professionnelles, 14ème édit., Dalloz, 2008, p.35;

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Justia Personal Injury Law Center Proving Fault and Damages in Personal Injury Lawsuits, Comparative & Contributory Negligence Laws: 50-State Survey; Steenson Mike, Minnesota Comparative Fault—Statutory Reform, Journal of law and practice, vol.9, art. 4, 2016, p.7; Alaska Statutes, § 09.17.060 (2023) - Effect of contributory fault US Codes and Statutes US Law Justia; Cutter Law P.C., What Is California's Comparative Negligence Law; Minnesota Statutes, & 604.02 (2024)- apportionment of damages, Official Publication of the State of Minnesota; Cour de Cassation, Civile, Chambre civile 2, 28 mars 2019, 18-14.125 18-15.855. Judgment I. BACKGROUND OF THE CASE

On 22/10/2020, in Rususa Village, Ryamuhirwa Cell, Nkungu Sector, Rusizi District, Western Province, a road accident occurred involving a Mitsubishi FUSO vehicle with plate number RAE 890 E, driven by Habimana Daniel. The vehicle hit Bizimana Védaste, resulting in injuries to his legs and causing a permanent incapacity assessed at 48%. The vehicle was insured by SANLAM AG Plc (referred to as SANLAM in this case).

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Bizimana Védaste wrote to SANLAM requesting damages, but the company responded that it would not pay any, arguing that the driver of the insured vehicle was not at fault. Instead, SANILAM claimed that Bizimana himself was the actual cause of the accident by admitting to be transported in the rear box of a loaded vehicle and jumping off while it was in motion. This disagreement led Bizimana Védaste to file a claim before the Intermediate Court of Rusizi, seeking for economic damages, moral damages, aesthetic damages, loss of employment damages, reimbursement of medical expenses, costs incurred in obtaining documents and counsel’s fee.

In the judgment n0 RC 00127/2021/TGI/RSZ rendered on 09/08/2022, the Intermediate Court of Rusizi ordered SANLAM to pay Bizimana Védaste economic damages amounting to 4,317,600 Frw, moral damages amounting to 432,000 Frw, aesthetic damages amounting to 216,000 Frw, 300,430 Frw for medical expenses, expenses for obtaining documents as well as transport, 500,000 Frw for counsel’s fees and 20,000 Frw of court fees, all totaling to 5,786,030 Frw.

The Court explained that Bizimana Védaste was injured by the aforementioned vehicle, which was insured by SANLAM, that he was still inside the vehicle at the time of the incident, adding that liability does not depend on how the person entered the vehicle or where he/she was being transported. The Court also based its decision on the negligence of the driver, who admitted that he did not know when Bizimana Védaste got into the vehicle, despite the fact that every vehicle is equipped with mirrors

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to monitor its surroundings. This negligence was further confirmed by the Police Investigator who visited the scene of the accident.

SANLAM appealed to the High Court, Rusizi Chamber, arguing that they are not subject to liability in this accident because the claimant had himself admitted that he chose to be transported in the rear box of the vehicle, and that he consciously jutransport Bizimana Védaste in the rear box of the vehicle, which is designated for cargo, the company should not be held liable, as such conduct would constitute intentional fault of the driver, thereby exempting SANLAM from liability in accordance with paragraph 4 of article 66 of Presidential Decree n° 85/01 of 02/09/2002 regulating general traffic police and road traffic 1.

In the judgment n0 RCA 00050/2022/HC/RSZ rendered on 26/07/2023, the High Court, Rusizi Chamber, found that SANLAM failed to prove any breach of insurance contractual obligations committed by the owner of the vehicle RAE 890 E which caused the accident. The Court therefore upheld the damages awarded in the appealed case.

The High Court explained that the accident was caused by the driver’s recklessness, a fact that was also confirmed by the police investigator who visited the scene of the accident. For that reason, SANLAM was held liable

1 That paragraph provides that the driver of one of the vehicles mentioned in the first paragraph is prohibited from carrying passengers in the rear box of that vehicle or its trailer.

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for the damages arising from the accident caused by the vehicle it had insured. The Court further clarified that judgment n0 RS/INJUST/RC00002/2021/SC, which SANLAM had cited as a basis for its argument, was not similar in nature to the present case. In that case, intentional fault had been established on the part of the vehicle owner, who admitted to transporting people in the rear box designated for cargo, exceeding the insured passenger limit, and allowing the vehicle to be driven by someone without a valid driving license. The High Court also found that Bizimana Védaste did not commit any fault by agreeing to sit on top of the cargo in the rear box, as it is the responsibility of the driver to be aware of the number of passengers the vehicle is authorized to carry and where they are supposed to sit.

After the High Court issued its decision, SANLAM wrote to the President of the Court of Appeal requesting that judgment n0 RCA 00050/2022/HC/RSZ rendered by the High Court, Rusizi Chamber, on 26/07/2023, be reviewed on grounds of injustice. After reviewing the request, the President of the Court of Appeal forwarded the report to the President of the Supreme Court, who confirmed that the case would be re- tried in the Supreme Court and registered under case n0 RS/INJUST/RC 00005/2024/SC.

In its submissions, SANLAM states that it was ordered to compensate Bizimana Védaste, even though he was the one who caused the accident in which he was injured. Moreover, the driver of the vehicle RAE 890 E committed the fault of agreeing to transport him in the rear

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box of the vehicle, fully aware that this was prohibited. Bizimana Védaste, on the other hand, argues that SANLAM should compensate him, based on the fact that it provided insurance for the vehicle that hit him, and that the Police Investigator who visited the scene of the accident confirmed that the accident was caused by the driver’ recklessness.

The case was heard in public on 11/11/2024, with SANLAM represented by Counsel Nkeza Sempundu Clément and Counsel Niyondora Nsengiyumva, while Bizimana Védaste was represented by Counsel Mukwende Milimo Olivier. The parties argued over the issues of whether SANLAM should be held liable for damages arising from the accident in which Bizimana Védaste was injured, and whether any damages should be awarded in the case. The case was closed, and the parties were notified that the judgment would be pronounced on 20/12/2024.

While the Court was in deliberation to render its judgment, it found that there were still additional isues that this court needed to ask the parties. It therefore deemed it necessary to reopen the case, and the hearing was scheduled on 11/02/2025. On that date, the hearing was held in public, with SANLAM represented by Counsel Niyondora Nsengiyumva, while Bizimana Védaste was represented by Counsel Mukwende Milimo Olivier. The parties were notified that the judgment would be pronounced on 28/03/2025.

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II. ANALYSIS OF LEGAL ISSUES 1) Whether SANLAM should be liable for the damages arising from the accident in which Bizimana Védaste was injured

SANLAM claims that it was ordered to pay damages for an accident in which Bizimana Védaste was injured, disregarding that the latter was the actual cause of the accident by admitting to be transported in the rear box of the vehicle on top of the cargo (bricks), which exposed him to the risk of falling and getting injured, additionally he committed a mistake of getting out from the moving vehicle.

SANLAM further states that Nyirandayishimiye Béatrice, who filed a complaint with the Investigation Bureau, reported that Bizimana Védaste reached his destination and knocked on the driver's door to request a stop and disembark, but the driver refused to stop, resulting in Védaste being struck on the leg. This statement serves as evidence that he was aware of the danger posed by exiting a moving vehicle but chose to do so regardless. Furthermore, in his defense, Bizimana Védaste admitted that he was being transported atop a load of bricks and acknowledged that the accident occurred because he exited the vehicle without waiting for it to stop. This admission indicates that the accident resulted from his own decision to disembark from a moving vehicle, and that he did so knowingly and intentionally.

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SANLAM explains that its argument is based on article 2 of Law no 41/2001 of 19/09/2001 determining compensation calculation modalities for people injured or whose property has been damaged by automobiles, which provides that “the fault of the victim of the accident excludes the right to compensation for the victim or his/her beneficiaries”. SANLAM further refers to the judgments previously rendered by this present Court, in which it was ruled that that in order for an insurer to compensate its insured, it is necessary to first prove that the insured person was the actual cause of the accident; and the injured party bears the burden of proof2.

SANLAM further argues that the fact that Bizimana Védaste was transported on top of the cargo, whether authorized or not, exempts this insurance company from liability for damages because it contradicts sub-paragraph 4 of article 66 of Presidential Order n0 85/01 of 02/09/2002 establishing general regulations governing roads and their use, which provides that the driver of a motor vehicle or a motor tricycle or quadricycle is prohibited from transporting persons in the rear box of the vehicle or its trailer. SANLAM adds that even if the driver of the vehicle was involved, this does not protect the insured or the claimants.

2 Case no RS/INJUST/RC00003/2023/SC decided by the Supreme Court on 24/02/2024, involving SANLAM AG Plc v. Nzamwitakuze Thérèse, mentioned the position set in the case nº RS/INJUST/RC00019/2022/SC decided by the Supreme Court on 02/06/2023, involving Musengamana Jean Marie Vianney v. SGF.

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SANLAM explains that the High Court ignored the analysis made by the Supreme Court on sub-paragraph 4 of article 66 of Presidential Order n0 85/01 of 02/09/2002 mentioned above, in the Case n0 RS/INJUST/RC 00002/2021/SC3, where Habimana Daniel had agreed to carry Bizimana Védaste in the rear box of a vehicle carrying bricks, fully aware that this was prohibited. SANLAM argues that in that case, the Court explained that the fact that the insured committed a breach of his obligations under the insurance contract, knowingly and intentionally, cannot be covered by that contract, either in his case or in the case of those injured by the insured vehicle.

He adds that the principle of insurance is that when the insured commits a fault, the insurer is liable for his faults, but that this principle has an exception provided for in paragraph 3 of article 11 of Decree Law n0 20/75 of 20/06/1975 relating to insurance in general, because the insurer does not cover faults that were intentionally committed by the insured or that could have been avoided. Regarding this case, the fact that the insured carried Bizimana Védaste to a place that was not designated for the transportation of people is an unrecoverable fault because it was arbitrarily committed, which is also consistent with the case of Kirehe District, SAHAM and others mentioned above.

3 Case no RS/INJUST/RC 00002/2021/SC decided on 30/12/2021. Involving Kirehe District v. SAHAM Assurance Rwanda Ltd, now known as SANLAM Assurances Générales Plc, along with the heirs of Gatashya Ezra others, paragraph 33.

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SANLAM requests the Court to declare that no damages would be paid, and to order Bizimana Védaste to refund all the money paid, while enforcing the judgement under review on grounds of injustice, amounting to 6,286,030 Frw as indicated by the payment receipt of 19/09/2023.

Bizimana Védaste argues that SANLAM's submissions should not be considered for the following reasons : a) SANLAM does not indicate the fault of the owner of the RAE 890 E vehicle that caused the accident. It also does not refer to the statement of the Judicial Police Officer who arrived at the scene of the accident, who confirmed that it was caused by the driver's recklessness, because he did not respect the general rules governing the roads and their use, prohibiting him from carrying people in the rear box even though he was loaded with luggage. In establishing the cause of the accident, the Judicial Police Officer also relied on the statements of the driver, Habimana Daniel, who testified that Bizimana Védaste jumped out of the vehicle and fell to the ground ; b) If SANLAM found that the driver was at fault, it would force intervene the owner of the vehicle to be held accountable for his/her actions as provided for in article 115 of Law n0 22/2018 of 29/04/2018 relating to Civil, Commercial, Labour and aministrative Procedure ;

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c) SANLAM is liable for damages resulting from accident in accordance with the provisions of article 3 of Decree-Law nº 32/75 of 07/08/1975 on compulsory civil liability for motor vehicles, which provides that "insurance must cover the liability of the owner of a motor vehicle, a possessor of it and of its driver, and that insurance must cover accidents occurring to persons carried in the vehicle in whatever circumnstance”; d) SANLAM is the one liable for damages also based on article 11 of the aforementioned Decree- Law which provides as follows : “no cause of action which has become null and void, is of no effect or is no longer applicable by reason of the Law or the contract, may be relied upon by the insurer against the injured party. The insurer may reserve the right to pursue the party who made the contract of insurance or, if necessary, the insured who is not the party to the contract, if the Law or the contract of insurance allows him to refuse or limit his obligations”; e) If SANLAM finds that the insured has caused harm or behaved contrary to what was agreed upon in the contract, it has the right to recourse action instead of claiming that Bizimana Védaste is not entitled to damages ; f) Paragraph 4 of article 66 of Presidential Order nº 85/01 of 02/09/2002 establishing general regulations governing roads and their use, stipulates that “the driver of a motor vehicle or a motor tricycle or quadricycle is prohibited from

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transporting persons in the rear box of the vehicle or its trailer”. The fact that Bizimana Védaste was transported in that part and on top of the bricks is against the law, and SANLAM should therefore be held liable as the insurer ; g) Habimana Daniel's claim that Bizimana Védaste got into the car without his knowledge is a fabrication made during interrogation before Investigation Bureau on the charge of involuntary bodily harm, in order to prove that he had no role in the commission of the crime ; h) Witnesses interviewed included Nsabimana Lambert and Nyirandayishimiye Béatrice, testified that Bizimana Védaste was on top of a vehicle loaded with bricks when he arrived in Nkungu Sector and knocked the driver’s door to get out because he had reached his destination and that the driver refused to stop, causing him to hit his leg ; i) Habimana Daniel cannot justify his lack of knowledge as to how Bizimana Védaste got onto the car, especially since every vehicle is equipped with mirrors that provide visibility inside and behind the car. The fact that he did not see him would be a mistake made by the insured, and the insurer should be held liable for the resulting damages; j) The case of Kirehe District v. SAHAM has no relation with the case at hand, because in that

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such a case the driver did not have a valid driving license.

Bizimana Védaste concludes that since he was hit by a RAE 890 E vehicle, which is insured by SANLAM, which, inthe insurance contract, agreed on liability for all damages it might cause, it is clear that whether he got into the car with or without the driver’s knowledge, SANLAM is liable for all damages resulting from the accident and should have paid for them. DETERMINATION OF THE COURT

The parties agree that Bizimana Védaste was seriously injured by a Mitsubishi Fuso RAE 890 E in an accident that occurred on 22/10/2020. However, they disagree on whether SANLAM should pay the damages claimed by Bizimana Védaste arising from that accident. SANLAM demonstrates two reasons on which it argues that it should not be liable for the damages claimed: a) The fact that the driver of the vehicle RAE 890 E made the mistake of allowing Bizimana Védaste to be transported in the rear box of the vehicle, fully aware that that it was prohibited ; b) The fact that Bizimana Védaste was the cause of the accident in which he was injured. 1. Regarding the fact that the driver of the RAE 890 E made the mistake of allowing Bizimana

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Védaste to be transported in the rear box of the vehicle fully knowing that it was prohibited

Article 3 of Decree Law n0 32/75 of 07/08/1975 relating to compulsory insurance against liability arising from moto vehicles, as amended by Law n0 02/2002 of 17/01/2002, provides in its first paragraph that insurance must cover the liability (civil liability) of the owner of the vehicle, its holder and any person driving it, except when it is in the possession of the person who stole it or took it by force.

Article 11 of Decree Law n0 20/75 of 20/06/1975 relating to insurance in general, as amended, provides as follows: “The insurer covers the insured against the risks provided for in the contract. He/she insures against risks arising from unforeseen circumstances (cas fortuits), and against risks arising from the fault of the insured, unless provided otherwise. Notwithstanding any provision to the contrary, the insurer cannot cover risks arising from intentional fault of the insured”.

Among the main points that emerge from these articles of both laws are that: insurance must cover the civil liability of the owner of the vehicle, its holder and anyone who drives it (excluding the person who stole it and the person who took it by force). It also includes that the insurer covers risks resulting from the fault of the insured, but does not cover those resulting from the intentional fault of the insured.

In the following paragraphs, the Court first analyses the definition of civil liability that is covered by

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insurance, and to the definition of intentional fault that is not covered by the insurance referring to experts’interpretations.

In the dictionary of terms, La Toupie, they explain that liability is determined by the fact that there is damage resulting from an act done intentionally or unintentionally, and by the fact that there is damage resulting from an omission provided for in the contract4.

Legal scholar Serge Braudo explains that liability arises from the failure to comply with the provisions of the contract, or from an act committed intentionally or unintentionally, which requires the wrongdoer to compensate for the damage caused to others5.

Regarding intentional fault, in the dictionary of legal terms, the expert Gérard CORNU explains that an

4 La responsabilité civile est la responsabilité considérée du point de vue des dommages qu’une action volontaire ou non, ainsi qu’une absence d’action prévue dans un contrat, ont pu causer); La Toupie, dictionnaire de politique, Responsabilité civile, consulté le 19/11/2024, https://www.toupie.org/Dictionnaire/Responsabilite_civile.htm#:~:t ext=D%C3%A9finition%20de%20responsabili%C3%A9%20civile, un%20contrat%2C%20ont%20pu%20causer. 5 la responsabilité civile est engagée, soit en raison de l'inexécution d'un contrat, soit en raison d'un acte volontaire ou non, entraînant pour la personne qui est fautive ou qui est légalement présumée fautive, l'obligation de réparer le dommage qui a été subi par une ou plusieurs autres; Serge BRAUDO, Dictionnaire du Droit Privé, Définition de Responsabilité civile, p.1, consulté le 19/11/2024, https://www.dictionnaire-juridique.com/definition/responsabilite- civile.php.

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intentional fault is one committed with the intent of harming another, generally with the intent to cause harm6.

The French Court of Cassation, referring to the writings of scholar Georges Brière de L’Isle, explains that a fault, even if committed knowingly, is considered intentional only if it is evident that the person who committed it intended to cause harm7. It further states that the defining characteristic of an intentional fault is the intention to cause harm, which rules out the possibility of an unforeseen event whose timing is uncertain or even happen as a basis for excluding liability8.

In another case decided by the French Court of Cassation, based on an article of the law governing insurance (such article is similar to article 11 of Decree Law n0 20/75 of 20/06/1975 mentioned above)9, The court

6 “Faute intentionnelle : faute commise avec intention de nuire, plus généralement avec celle de causer le dommage»; Gerard CORNU, Vocabulaire juridique, 11ème édition, Puf, 1987, p.452. 7 “Georges Brière de L’Isle indique qu’« il est clair que la faute, même consciente, ne peut être qualifiée d’intentionnelle que si l’on relève chez son auteur la volonté de causer le dommage”; Cour de Cassation, Recueil annuel des études 2023, A. L’identité des fautes intentionnelle et dolosive, Étude, p.1, consulté le 14/11/2024, https://www.courdecassation.fr/publications/etude-annuelle/recueil- annuel-des-etudes-2023/lidentite-des-fautes intentionnelle-et-0. 8 “C’est la recherche du résultat dommageable qui caractérise aussi bien la faute intentionnelle que la faute dolosive car c’est elle qui, supprimant l’aléa, « justifie l’exclusion de la garantie de l’assureur”; Ibidem, p.2 9 Article L113-1 du Code des Assurances (en vigueur au 20/11/2024): “Les pertes et les dommages occasionnés par des cas fortuits ou causés par la faute de l'assuré sont à la charge de l'assureur, sauf

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explained that intentional fault occurs when there is an intent to cause harm in the manner in which it occurred, and it excludes liability for harm caused by the insured as a result of his or her intent when committing the offense. It also explained that in order for an insurer to refrain from paying based on a clause in a contract that prohibits liability for intentional fault, must provide evidence that the insured intentionally caused the harm10.

The Belgium Court of Cassation has held that, pursuant to the provisions of the Law on Insurance Contracts11, The insurer does not cover accidents caused

exclusion formelle et limitée contenue dans la police. Toutefois, l'assureur ne répond pas des pertes et dommages provenant d'une faute intentionnelle ou dolosive de l'assuré”. 10 “Vu l'article 1134, devenu 1103, du code civil et l'article L. 113-1 du code des assurances : Selon le second de ces textes, la faute intentionnelle implique la volonté de créer le dommage tel qu'il est survenu et n'exclut de la garantie due par l'assureur à l'assuré, condamné pénalement, que le dommage que cet assuré a recherché en commettant l'infraction. Il en résulte que, pour exclure sa garantie en se fondant sur une clause d'exclusion visant les dommages causés ou provoqués intentionnellement par l'assuré, l'assureur doit prouver que l'assuré a eu la volonté de créer le dommage tel qu'il est survenu” ; COUR DE CASSATION (France), DEUXIÈME CHAMBRE CIVILE, DU 16 SEPTEMBRE 2021, n° 19-25.678, para 11 et 12, consulté le 20/11/2024, https://www.legifrance.gouv.fr/juri/id/JURITEXT000044105908?ini t=true&page=1&query=1925678&searchFieldALL&tab_selection= all. 11 Article 8: “Nonobstant toute convention contraire, l’assureur ne peut être tenu de fournir sa garantie à l’égard de quiconque a causé intentionnellement le sinistre. L’assureur répond des sinistres causés par la faute, même lourde, du preneur d’assurance, de l’assuré ou du bénéficiaire. Toutefois, l’assureur peut s’exonérer de ses obligations

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intentionally. The court adds that an intentionl fault requires an intentto cause harm 12.

Scholar CHRISTOPHER C. FRENCH explains that however few courts require that the act giving rise to the damage be intentional in order for liabilities be exempted, the majority of courts require that the insured has the intent to cause the harm, rather than merely the intent to commit the tortious act. The reason is that many acts that lead to accidents are intentional ; but that does not mean that the perpetrator intended to cause the accident or the injuries and damage. For example, if a driver causes an accident because he was distracted by texting, the acts of driving while texting would be intentional. However, the subsequent accident and the injuries and damage that resulted from that accident were

pour les cas de faute lourde déterminés expressément et limitativement dans le contrat. Le Roi peut établir une liste limitative des faits qui ne peuvent être qualifiés de faute lourde”. 12 “Selon l’article 8, alinéa 1er, de la loi du 25 juin 1992 sur le contrat d’assurance terrestre, applicable au litige, nonobstant toute convention contraire, l’assureur ne peut être tenu de fournir sa garantie à l’égard de quiconque a causé intentionnellement le sinistre. La faute intentionnelle suppose la volonté de causer un dommage résultant de la réalisation d’un risque couvert par le contrat d’assurance”; COUR DE CASSATION Belge, 23 FÉVRIER 2017, para 1 et 2, consulté le 27/11/2024, https://juricaf.org/arret/BELGIQUE-COURDECASSATION- 20170223-C150243F; Voir aussi Cour de cassation Belge, 03 Novembre 2022, C.21.0407.F, première chamber, Commerciale, https://juricaf.org/arret/BELGIQUE-COURDECASSATION- 20221103-C210407F.

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not intended by the driver, even though they may be foreseeable consequences of the negligent behavior13.

The scholar Bernard DUBUISSON explains that intentional fault in insurance law is a fault that causes the insured and the insurer to intentionally cause a risk. Risk is defined as any unforeseen event that may occur and threaten the person is insured. For intentional fault to exist, the insured must have had the intent to cause harm14.

13 “Although a minority of jurisdictions only require that the action leading to the injury be intentional for a forfeiture of coverage to occur, the vast majority of jurisdictions require that the insured must intend to cause an injury, not merely intend to do the act that causes the injury. The reason for this is because many actions that lead to accidents are intentional. That does not mean, however, that the actor intended to cause the accident or the resulting injuries and damage. For example, when a driver causes a car accident because the driver is distracted by texting, both the acts of driving and texting are intentional. The ensuing crash and resulting injuries and damage, however, are not intended by the driver even though they may be the foreseeable consequences of the negligent behavior; CHRISTOPHER C. FRENCH (Director of Trial Advocacy Program and Professor of Practice at Penn State Law; J.D., Harvard Law School; B.A., Columbia University), Insuring Intentional Torts, OHIO STATE LAW JOURNAL [Vol. 83:6], p.1079-1080, accessed on 21/11/2024, https://moritzlaw.osu.edu/sites/default/files/2023- 03/French_V6_1069-1111.pdf. 14 “La faute intentionnelle en droit des assurances est celle par laquelle le preneur d'assurance, l'assuré ou le bénéficiaire d'une prestation d'assurance a causé intentionnellement le sinistre.[…] Le sinistre se définissant comme la réalisation du risque couvert par le contrat, il faudrait donc, pour pouvoir parler de faute intentionnelle, que l'assuré ou le bénéficiaire ait voulu que le risque se réalise”; Bernard DUBUISSON, Professeur ordinaire à l'Université catholique de Louvain, Professeur aux Facultés universitaires Saint- Louis, LA FAUTE INTENTIONNELLE EN DROIT DES ASSURANCES -

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Scholars Yvonne LAMBERT-FAIVRE and Laurent LEVENEUR also argue that it is not enough for the perpetrator to have committed the act knowingly and intentionally (such as exceeding the speed limit, failing to stop at a red light, etc.); he must also have had the intent to cause the harm. Using the term "intentional damage" would be more precise15.

The foregoing elucidations are also upheld by the scholar Hubert GROUTEL, who explains that intentional fault, which excludes liability, is one committed with the intent to cause harm. The insured must not only have intended to do or not do the act that caused the damage, but must also have intended to cause the damage16.

L'ÉCLAIRAGE DU DROIT PÉNAL, Revue Générale des Assurances et des Responsabilités (2010), p.2, pt. 4, consulté le 21/11/2024, https://dial.uclouvain.be/pr/boreal/object/boreal%3A76896/datastrea m/PDF_01/view. 15 “L‘intention ne s’applique pas à la faute (fait générateur) mais au dommage qui en est l’objet. L’auteur de l’acte ne se contente pas de commettre une faute volontaire et délibérée (ex. Excès de vitesse, non- respect d’un feu rouge…); l’intention vise la réalisation du dommage. L’expression “dommage volontaire” ou “dommage intentionnelle” serait plus exacte”; Yvonne LAMBERT-FAIVRE et Laurent LEVENEUR, Droit des assurances, 14ème édit., Dalloz, 2017, P.318. 16 “La faute intentionnelle qui exclut la garantie de l’assureur est celle qui suppose la volonté de causer le dommage et pas seulement d’en créer le risque. […] La faute intentionnelle au sens de l’art. L113-1, al.2,C. assur. suppose que l’assuré a voulu non seulement l’action ou l’omission génératrice du dommage mais encore le dommage lui- même; Hubert GROUTEL, Code des Assurances, Annotations de jurisprudence et de bibliographie relatives aux “Responsabilités professionnelles, 14ème édit., Dalloz, 2008, p.35.

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From all the explanations provided, the following important points are understood : a) Liability arises from an act committed intentionally or unintentionally, which obliges the wrongdoer to pay for the damage caused to others ; and such liability is insured ; b) Strict liability is that which arises from the intentional fault of the insured ; c) An intentional fault is the one committed with the intent of causing harm ; d) A fault, even if committed knowingly, is considered intentional only if it is clear that the perpetrator had the intent to cause harm ; e) The characteristic of an intentional fault, is the intent to harm, rather than merely the intent to commit the harmful act ; f) For an insurer to refuse to pay based on a statutory or contractual provision prohibiting liability for intentional fault, he/she must provide evidence that the insured committed the fault with the intent to cause harm.

Regarding this case, SANLAM argues that it should not be liable for the damages claimed by Bizimana Védaste, since Habimana Daniel, the driver of the insured vehicle, agreed to transport him in the rear box of a vehicle carrying bricks, despite being fully aware that this was prohibited under sub-paragraph 4 of article 66 of Presidential Order n0 85/01 of 02/09/2002 establishing

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general regulations governing roads and their use17, and therefore he knowingly and intentionally committed faults.

As explained above, the fact that the perpetrator knowingly and intentionally committed the act that caused the harm does not in itself exclude the liability. Strictl liability arises from intentional fault committed by the insured, that is, a fault committed with the intent to cause harm, and the insurer must provide evidence during the proceedings. This changes the position set in Case n0 RS/INJUST/RC 00002/2021/SC, decided by this instant Court on 30/12/2021, Kirehe District v. SAHAM Assurance Rwanda Ltd which became SANLAM Assurances Générales Plc, the heirs of GATASHYA Ezra et al.18; such position stated that the insurer is not liable for faults knowingly and intentionally committed by the insured.

The Court finds that SANLAM failed to present evidence proving that Habimana Daniel committed the fault of transporting Bizimana Védaste in the rear box of the vehicle, where passengers are not allowed, with the intent of causing harm ; therefore, this cannot serve as a

17 That articleprovides that the driver of a motor vehicle, or of a three- wheeled or four-wheeled motorized vehicle, is prohibited from carrying passengers in the rear box of that vehicle or its trailer. 18 Case n0 RS/INJUST/RC 00002/2021/SC, adjudicated by the Supreme Court on 30 December 2021, involved Kirehe District as the plaintiff against SAHAM Assurance Rwanda Ltd, now known as SANLAM Assurances Générales Plc, the heirs of GATASHYA Ezra, and others, paragraph 37.

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valid ground to exclude SANLAM from liability for the damages claimed. 2. Regarding the fact that Bizimana Védaste was the actual cause of the accident in which he was injured

Article 2 of Law n0 41/2001 of 19/09/2001 relating to compensation for persons injured in motor vehicle accidents provides as follows : "The damages referred to in articles 4 to 10 of this Law shall be reduced in proportion to the degree of fault of the injured party in the accident. The injured party’s fault, excludes his/her rights to damages or those with rightful to his/her properties”.

Regarding the insured, as previously explained, the law stipulates that the type of fault not covered by insurance is one committed intentionally, that is, a fault committed with the intent to cause harm. In contrast, with respect to the injured party, the law provides that their own fault may prevent them from receiving compensation. The key issue, therefore, is whether any form of fault committed by the injured party should result in a total denial of compensation. If that were the case, the first sentence of Article 2 of the aforementioned law, which states that compensation awarded to the injured party is to be reduced in proportion to their contribution to the accident, would be rendered meaningless. This sentence clearly implies that certain faults committed by the injured party may still entitle them to partial compensation, depending on the degree of their contribution to the accident. To resolve this question, the Court finds it necessary to examine comparative legal

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frameworks and jurisprudence from other countries that address similar issues, as well as the legal interpretations applied to such provisions.

In the United States of America, the applicable laws vary from one state to another. In some states, any fault of injured party of the accident bars them from receiving compensation (contributory negligence system). In other states, the injured party’s fault leads to a reduction of compensation in proportion of his/her contribution to the accident19. This latter approach is further divided into two (2) categories: one where the injured party receives compensation proportionate to their share of fault, except when their fault amounts to 100% (pure comparative fault system); and another where compensation is awarded proportionally, except when the injured party’s fault is equal to or greater than that of the

19 All but one of the states has chosen one of the following three approaches for victims who were partly at fault for their injuries: - Contributory negligence: the plaintiff cannot recover damages if they were at fault to any degree; - Pure comparative negligence: the plaintiff can recover damages reduced by their percentage of fault - Modified comparative negligence: the plaintiff can recover damages reduced by their percentage of fault if their fault is not 50 or 51 percent (varies by state) or greater; Justia Personal Injury Law Center Proving Fault and Damages in Personal Injury Lawsuits, Comparative & Contributory Negligence Laws: 50-State Survey, accessed on 16/12/2024, accessed on 16/12/2024, https://www.justia.com/injury/negligence-theory/comparative- contributory- negligence-laws-50-state-survey/.

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party who caused the harm (modified comparative fault system) 20.

In the State of Alaska, the injured party’s fault leads to a reduction in the compensation awarded in proportion to his/her contribution, but it does not bar him/her from receiving compensation21. The same applies in the State of California22. In the State of Minnesota, the

20 In a pure comparative fault system, the plaintiff will not be barred from recovery unless the plaintiff is 100 percent at fault, but the plaintiff’s recovery will be reduced by her percentage of fault. In a modified comparative fault jurisdiction, the plaintiff may be barred from recovery if the plaintiff’s fault is equal to or greater than the fault of the defendant, or in some jurisdictions, only where the plaintiff’s fault is greater than the defendant’s fault; Steenson Mike, Minnesota Comparative Fault—Statutory Reform, Journal of law and practice, vol.9, art. 4, 2016, p.7, http://open.mitchellhamline.edu/lawandpractice/vol9/iss1/4. 21 “In an action based on fault seeking to recover damages for injury or death to a person or harm to property, contributory fault chargeable to the claimant diminishes proportionately the amount awarded as compensatory damages for the injury attributable to the claimant's contributory fault, but does not bar recover”; Alaska Statutes, § 09.17.060 (2023) - Effect of contributory fault US Codes and Statutes US Law Justia, accessed on 16/12/2024, https://law.justia.com/codes/alaska/title-9/chapter-17/section-09-17- 060/; https://law.justia.com/codes/alaska/title-9/chapter-17/section- 09-17-060/. 22 California follows the pure comparative negligence rule. You can recover damages in cases even if you are partially at fault. If you and the defendant are found negligent, the jury assigns a percentage of fault to each party. The total compensation awarded to you is reduced by your percentage of fault. If you are 99% at fault, you can still receive 1% of the total-case value; Cutter Law P.C., What Is California's Comparative Negligence

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injured party’s fault also results in a reduction of compensation in proportion to his/her degree of fault; however, if their degree of fault exceeds 50%, they are not entitled to any compensation. Additionally, no compensation is awarded if the injured party intentionally caused the harm23. The same rule applies in the State of Arizona nad Minesota, no compensation is awarded in case the injured party intentionally caused the damage24.

In France, Act no 85-677 aiming at the improvement of the position of the victims of traffic accidents and the acceleration of compensation procedures, p article 3 (paragraphs 1 and 3), stipulates that

Law?, accessed on 16/12/2024, https://cutterlaw.com/california- laws/comparativenegligence/#:~:text=California%20follows%20the %20pure%20comparative,by%20your%20percentage%20of%20faul t. 23 “When two or more persons are severally liable, contributions to awards shall be in proportion to the percentage of fault attributable to each, except that the following persons are jointly and severally liable for the whole award: (1) a person whose fault is greater than 50 percent; (2) two or more persons who act in a common scheme or plan that results in injury; (3) a person who commits an intentional tort; […]”; Minnesota Statutes, & 604.02 (2024)- apportionment of damages, Official Publication of the State of Minnesota, accessed on 16/12/2024, https://www.revisor.mn.gov/statutes/2024/2024-11- 01%2021:08:20+00:00/cite/604.02/pdf. 24 “There is no right to comparative negligence in favor of any claimant who has intentionally, wilfully or wantonly caused or contributed to the injury or wrongful death”; Arizona Revised Statutes, § 12-2505 (2023)-comparative negligence US Codes and Statutes US Law Justia, accessed on 16/12/2024, https://law.justia.com/codes/arizona/title-12/section-12-2505/.

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victims excluding drivers of motor vehicles are entitled to compensation regardless of any fault they may have committed, except in two circumstances: when they have committed an inexcusable fault that is the sole cause of the accident; and when they deliberately sought for the risk that caused them harm25. In a judgment decided by the Court of Cassation of that country on 28/03/2019, the Court explained that an inexcusable fault is the one that is committed intentionally and having particular gravity, and exposes the person who committed it to serious danger which they should have foreseen.26.

25 Article 3 de la Loi No 85-677 du 05/07/1985: “Les victimes, hormis les conducteurs de véhicules terrestres à moteur, sont indemnisées des dommages résultant des atteintes à leur personne qu'elles ont subis, sans que puisse leur être opposée leur propre faute à l'exception de leur faute inexcusable si elle a été la cause exclusive de l'accident. Les victimes désignées à l'alinéa précédent, lorsqu'elles sont âgées de moins de seize ans ou de plus de soixante-dix ans, ou lorsque, quel que soit leur âge, elles sont titulaires, au moment de l'accident, d'un titre leur reconnaissant un taux d'incapacité permanente ou d'invalidité au moins égal à 80 p. 100, sont, dans tous les cas, indemnisées des dommages résultant des atteintes à leur personne qu'elles ont subis. Toutefois, dans les cas visés aux deux alinéas précédents, la victime n'est pas indemnisée par l'auteur de l'accident des dommages résultant des atteintes à sa personne lorsqu'elle a volontairement recherché le dommage qu'elle a subi”. 26 “Seule est inexcusable au sens de ce texte [L. n° 85-677, 5 juill. 1985, art. 3] la faute volontaire d’une exceptionnelle gravité exposant sans raison valable son auteur à un danger dont il aurait dû avoir conscience »; Cour de Cassation, Civile, Chambre civile 2, 28 mars 2019, 18-14.125 18-15.855, https://www.legifrance.gouv.fr/juri/id/JURITEXT000038373269.

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In the Kingdom of Belgium, victims who were not drivers are entitled to compensation, except for individuals over the age of 14 who deliberately sought for the risk that caused them harm.27.

What the above interpretations have in common is that the fault which prevents a victim from receiving damages is either one that was the sole cause of the accident (i.e., contributing 100% to the occurrence of the accident), or a fault committed deliberately by the victim with the intent of causing self-harm. The Court finds that this is the appropriate interpretation to be given to the second sentence of article 2 of Law n0 41/2001 of 19/09/2001 relating to compensation for persons injured in motor vehicles accidents.

With regard to the case at hand, the person called Ndayishimiye Béatrice (the sister-in-law of Bizimana Védaste), who reported the claim to the Police on behalf of the person who had the accident, told the Investigator

27 Article 29 bis de la La loi du 21 novembre 1989 relative à l'assurance obligatoire des véhicules Automoteurs tel que modifiée à ce jour, para 1 et 6: “§ 1er. En cas d'accident de la circulation impliquant un ou plusieurs véhicules automoteurs, aux endroits visés à l'article 2, § 1er, alinéa1er, et à l'exception des dégâts matériels et des dommages subis par le conducteur de chaque véhicule automoteur impliqué, tous les dommages subis par les victimes et leurs ayants droit et résultant de lésions corporelles ou du décès, y compris les dégâts aux vêtements, sont réparés solidairement par les assureurs qui, conformément à la présente loi, couvrent la responsabilité du propriétaire, du conducteur ou du détenteur des véhicules automoteurs. & 6: Les victimes âgées de plus de 14 ans qui ont voulu l'accident et ses conséquences ne peuvent se prévaloir des dispositions visées à l'alinéa 1er”.

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that Bizimana Védaste requested the driver of vehicle RAE 890 E for a lift, and when he reached his destination, he knocked to signal the driver to stop, but the driver did not hear him. As a result, he got out while the vehicle was still moving, and one of the rear wheels ran over his leg, causing a fracture. Nsabimana Lambert, who was present at the scene of the accident, told the Investigator that the accident was caused by the fact that Bizimana Védaste got out of the moving vehicle, as well as the driver’s failure to stop so that he could get out safely.

In the accident report dated 24/01/2021, the Investigator concluded that the accident was caused by the recklessness of the driver, Habimana Daniel. This conclusion was based on the fact that the road layout was clear and provided the driver with sufficient visibility both ahead and behind; the driver was prohibited from transporting passengers in the rear compartment of a vehicle loaded with goods; and every motor vehicle is required to be equipped with at least one rear-view mirror designed to enable the driver to monitor activity behind and to the left side of the road.

The Court, after comparing the witnesses’ testimonies with the contents of the Investigator’s report, finds that Bizimana Védaste contributed to the accident in which he was injured, as he committed the fault of getting out of a moving vehicle. However, the Court finds that this fault was not the sole cause of the accident, as the driver of the vehicle also bore some responsibility. The Court also finds that, although Bizimana Védaste behaved

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in that manner, he did not deliberately intend the harm he suffered.

Based on the above explanations, the Court finds that Bizimana Védaste did not commit a fault that would exclude him from receiving damages, as provided for in the second sentence of article 2 of Law n0 41/2001 of 19/09/2001 mentioned above. Conclusion :

Based on the legal provisions mentioned and all the above explanations, the Court finds that SANLAM should be held liable for the damages resulting from the accident in which Bizimana Védaste was injured. 3. Whether any damages should be awarded in this case

SANLAM argues that since the accident in which Bizimana Védaste was injured was caused by his own faults namely, agreeing to be transported in the rear box of the vehicle designated for the cargo and jumping off while it was still moving, it is evident that he dragged this insurance company into unnecessary lawsuits. Therefore, SANLAM requests that he should be ordered to pay 1,000,000 Frw as damages for being dragged into unnecessary lawsuits; and 3,000,000 Frw for counsel and procedural fees, consisting of 2,400,000 Frw as counsel’s fees for representation before three court levels (800,000 RWF for the Intermediate Court, 800,000 Frw for the High Court, and 800,000 RWF for the Supreme Court), and 600,000 Frw for procedural fees across the three court levels (200,000 RWF for the Intermediate Court, 200,000

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RWF for the High Court and 200,000 RWF for the Supreme Court).

Bizimana Védaste argues that the case under review clearly establishes SANLAM’s role as the insurer of the vehicle that struck him, and that the court thoroughly examined the precedents cited by SANLAM, demonstrating that they differ in nature from the present case. Therefore, he contends that he should not be held liable for any damages, as he was not the cause of the incident. He requests that SANLAM be ordered to pay him 1,000,000 Frw in moral damages, 500,000 Frw in counsel’s fees, and 500,000 Frw in procedural costs. DETERMINATION OF COURT

The Court finds that the damages requested by SANLAM should not be granted because it lost the case. This very court further finds that the procedural and counsel’s fees requested by Bizimana Védaste should be awarded, because it was necessary for him to pursue the case and hire a lawyer, however the amount requested is excessive, and upon the court’s discretion, he is entitled to 300,000 Frw for the procedural fees and 500,000 Frw for counsel's fees. Regarding moral damages requested by Bizimana Védaste, the Court finds that they should not be considered as he is not the one who applied for the review of the case on grounds of injustice. III. DECISION OF THE COURT

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Declares the application filed by SANLAM AG Plc for a review on grounds of injustice of judgment n0 RCA 00050/2022/HC/RSZ rendered by the High Court, Rusizi Chamber on 26/07/2023, unfounded ;

Holds that the judgment n0 RCA 00050/2022/HC/RSZ rendered by the High Court, Rusizi Chamber on 26/07/2023, is sustained ; Orders SANLAM AG Plc to pay Bizimana Védaste 300,000 Frw for the procedural fees and 500,000 Frw for counsel's fees.