ARTICLE
19 January 2023

Negligence vs Recklessness

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Adams & Adams

Contributor

Adams & Adams is an internationally recognised and leading African law firm that specialises in providing intellectual property and commercial services.
Consumers procure insurance for many reasons.
South Africa Insurance
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Consumers procure insurance for many reasons. One of the reasons is to protect themselves from their own actions.

Negligence v recklessness

Some actions enjoy cover under insurance policies whilst others don't. For example, negligent actions are usually covered whilst reckless actions are usually not. Negligence can colloquially be defined as failing to act reasonably which is determined by an objective test, enquiring whether an insured acted below the standard expected from a reasonable person under the same circumstances. Recklessness, on the other hand, is loosely defined as having knowledge of the danger associated with one's actions but not caring about the result thereof. Contrary to the objective test associated with negligence, the test for recklessness is subjective, enquiring as to the state of mind of the insured at the time of their actions.

Whilst the words seem interchangeable, they are not and they are likely to be the difference between an insurer accepting or rejecting a claim.

Case study

Insurance policies often exclude damage arising from the reckless actions of an insured. The Supreme Court of Appeal judgement in Van Zyl NO v Kiln Non-Marine Syndicate No 510 of Lloyds of London demonstrates this. The deceased took out an accidental death and disability policy prior to his passing. Following the deceased's death, the executor of his estate instituted a claim based on the deceased's insurance policy. The deceased's insurance company thereafter repudiated the executor's claim because it believed that the deceased actions on the night in question fell within the exclusion clause contained in the policy. The executor thereafter sued the insurance company to recover the damages flowing from the insurance company's repudiation of the claim. One of the questions the court had to answer was whether the insurance company could be excused from liability because the deceased willfully exposed himself to danger. On the night in question, the deceased attended a party and drank a large amount of brandy (alcohol) prior to attempting to travel home via his motor vehicle. The court found that the deceased fell asleep whilst driving due to the amount of alcohol he consumed at the party and late hour of his departure. The deceased's policy contained an exception clause, excluding liability in the case of "willful exposure to danger". The court found that by ignoring the risks of driving whilst under the influence of a large amount of alcohol the deceased willfully exposed himself to danger and was reckless. As a result, the court dismissed the court action instituted by the deceased's executor.

Conclusion

The question whether a person's actions are negligent or reckless is not always clearcut. By way of example, is it per se reckless to travel at 160km/h, in a 120km/h speed zone, on an open stretch of road in the Karoo in the middle of the day? Anyone who travelled this past festive season will tell you that very few motor vehicle drivers abide by the speed limit in South Africa. Some people will accordingly argue that travelling at 160km/h in the Karoo is perfectly safe and by no means reckless. Others will tell you that travelling at that speed increases the chances of a tyre burst, striking a stray buck wondering over the road, etc. Fortunately, insurance companies are obliged, by law, to prove that an insured consumer's actions were reckless, failing which they ought to pay out any claim submitted. If they don't, consumers should not hesitate to seek legal advice.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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