Price v Mutual & Federal Insurance Co. Ltd (2052/2003) [2005] ZAECHC 36; 2005 (1) SACR 501 (SE); 2007 (4) SA 51 (SE) (6 September 2005)

Price v Mutual & Federal Insurance Co. Ltd (2052/2003) [2005] ZAECHC 36; 2005 (1) SACR 501 (SE); 2007 (4) SA 51 (SE) (6 September 2005)

The court found that the defendant failed to discharge the onus to prove that the plaintiff drove his vehicle while under the influence of intoxicating liquor or drugs, or while his blood alcohol concentration exceeded the statutory limit. The evidence regarding the calibration and operation of the Lion S-D2 breathalyser was insufficiently reliable and inadequately explained, casting doubt on the accuracy of the reading. The court held that the defendant was required to establish the plaintiff’s individual partition ratio for converting breath alcohol to blood alcohol, and had not done so. The absence of clinical signs of intoxication and the lack of corroboration for the traffic...

Citation
[2005] ZAECHC 36
Parties
Plaintiff: Terence Newbury Price; Defendant: Mutual & Federal Insurance Co. Ltd
Court
High Courts - Eastern Cape
Jurisdiction
South Africa
Judgment Date
6 September 2005
Case Number
2052/2003
Procedural Posture
Civil Action / Merits Separated From Quantum; Judgment on Merits
Outcome
Plaintiff’s claim is not excluded by the special exclusions section of the insurance policy; defendant is liable for damages proved or agreed upon; defendant to pay plaintiff’s costs on a High Court scale, including costs for two counsel and qualifying expenses of Professor Saayman.
Judges
Sangoni
Legal Topics
Insurance Exclusion Clause, Burden of Proof, Breathalyser Evidence, Partition Ratio, Calibration of Instruments
Commercial and Corporate Civil Procedure Insurance Exclusion Clause Burden of Proof Breathalyser Evidence Partition Ratio Calibration of Instruments

Case Brief

Summary, issues, holding and outcome

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Parties

Terence Newbury Price

Plaintiff

Mutual & Federal Insurance Co. Ltd

Defendant

Procedural Posture

Civil Action / Merits Separated From Quantum; Judgment on Merits

Legal Issues

  1. 1 Whether the plaintiff drove his vehicle while under the influence of intoxicating liquor or drugs, or while the concentration of alcohol in his blood exceeded the statutory limit.
  2. 2 Whether the breathalyser reading of 0.44 mg/l accurately reflected the plaintiff's blood alcohol concentration above the statutory limit.
  3. 3 Whether the defendant discharged the onus to prove the exclusion clause applied to the plaintiff's claim.

Ratio Decidendi

The court found that the defendant failed to discharge the onus to prove that the plaintiff drove his vehicle while under the influence of intoxicating liquor or drugs, or while his blood alcohol concentration exceeded the statutory limit. The evidence regarding the calibration and operation of the Lion S-D2 breathalyser was insufficiently reliable and inadequately explained, casting doubt on the accuracy of the reading. The court held that the defendant was required to establish the plaintiff’s individual partition ratio for converting breath alcohol to blood alcohol, and had not done so. The absence of clinical signs of intoxication and the lack of corroboration for the traffic...

Court Disposition

Plaintiff’s claim is not excluded by the special exclusions section of the insurance policy; defendant is liable for damages proved or agreed upon; defendant to pay plaintiff’s costs on a High Court scale, including costs for two counsel and qualifying expenses of Professor Saayman.

Orders

  • Plaintiff’s claim is not excluded by the special exclusions section in the insurance policy.
  • Defendant must pay the plaintiff such damages as are proved or agreed upon resulting from the accident on 25 April 2003.