The owner of a red Ferrari “catastrophically damaged beyond repair” in an accident on Gauteng’s William Nicol Drive three years ago has won against his insurance company, with a court ordering that it pay him R1.8m.
Sashin Govender was forced to sue Guardrisk Insurance Company after it repudiated his claim, alleging that he must have been driving “recklessly” on that evening.
But Pretoria high court judge Anthony Millar said there was no evidence of this and in all likelihood Govender’s Ferrari California had aquaplaned during a downpour.
“There is no evidence before the court to establish that notwithstanding the inclement weather, that he knew or foresaw that the road conditions could cause him to lose control of the vehicle,” he said, noting the insurance company bore the onus to prove that Govender had acted recklessly.
Govender, who was driving home with his mother on the evening of February 22 2019, admitted he lost control and collided with a lamppost on the island separating the north and south bound lanes of the road.
Neither was injured, but the car was almost split in half.
The repudiation by the insurance company was premised on a policy clause that he had “failed to take all responsible precautions to prevent loss, damage and accidents” and was based on the view he had been travelling at an excessive speed of 135km/h.
Govender, giving evidence at his trial, said it had been raining heavily, and as a consequence, he had slowed down. He even put on his emergency lights to make himself more visible.
As he pulled off from a traffic light, going about 80km/h, his car suddenly pulled to the left.
He instinctively corrected the car by steering to the right. That was when he lost control and the vehicle spun a number of times before hitting the pole.
He said he assumed he lost control because of water on the road and had hit a puddle.
An assessor for the insurance company, a Mr Giezing, testified that he had appointed an expert to investigate.
The expert [who did not testify] wanted to examine the car’s “black boxes”, computer modules that record realtime data of the vehicle.
However, one was irreparably damaged. While the other was undamaged, only Ferrari could access this data, and the company was not willing to assist the expert.
Nonetheless, he prepared a calculation of the speed Govender was doing using “tensile strength” of the material the car was manufactured from and concluded Govender was doing 135km/h.
However, it emerged in evidence that the expert had not examined nor tested the written-off Ferrari and that he had used an EU standard measurement derived from testing wheel rims by Mercedes-Benz.
After this lawyers for the insurance company decided he would not give evidence.
Govender called his expert witness, a Mr Grobbelaar, who said he could not say what speed he was travelling but hydro or aquaplaning was the “probable cause” for losing control.
Millar said irrespective of the speed Govender was travelling — and while evidence established there was no puddle — the probabilities overwhelmingly favoured that the accident was caused by water running across the road from left to right.
Millar said Govender and his legal team had had to spend money on hiring their expert witness when the insurance company’s so-called expert was not one and would not have withstood the scrutiny of an interrogation in court.
“These costs were entirely unavoidable,” he said.
“Put bluntly, [Govender] ought never to have been forced to court on the basis that he was,” he said.
He ordered Guardrisk to pay Govender R1,827,500 plus interest and to pay his costs on a punitive scale.
Would you like to comment on this article?
Sign up (it's quick and free) or sign in now.
Please read our Comment Policy before commenting.