Advertise Here
Icon

Directory

IconAccounting & Tax
IconAccreditation Bodies
IconActuaries
IconAssociations and Institutes
IconAuditors
IconBBBEE Consulting and Verification Agencies
IconBusiness Process Management
IconBusiness Process Outsourcing
IconCompany Secretarial Services
IconCompare Medical Scheme Benefits
IconCompliance
IconConsumer Protection
IconCorporate Governance
IconCredit Bureaus
IconDebit Order Collection Facilities
IconEducation and Training
IconEmergency Medical Rescue
IconExpatriate Cover
IconFAIS
IconHealthcare Consultants
IconHuman Resources
IconInformation Technology and Software Partners
IconLegal
IconManaged Healthcare Service Providers
IconMedical Aid Administrators
IconMedical Aid Schemes
IconMedical Schemes Trustees Liability Insurance
IconMedical Service Providers
IconOmbud
IconPolicy Administration
IconPublications
IconRegulatory Authorities
IconSurveys & Research
IconTraining Courses & Workshops
IconWellness Programs
Advertise Here
  Subscribe To »

Meeting by Accident

Published

2018

Tue

17

Jul

 

By Camilla Osrin
Camargue Underwriting Managers (Pty) Ltd

When people ask me what I like so much about my job they are often surprised when I say, “the claims”. People (rightly) assume we shed a tear every time there is a claim notification against one of the policies we have underwritten. The truth is that when we are confronted with a tricky claim we get the opportunity to debate and engage with our policy wording, the law and each other. One such claim recently became a talking point in the General Liability division.

This claim related to security officers who were guarding a site. These security officers had physical access to the keys of the vehicles on site but they were certainly not permitted to take vehicles for joyrides.

And then it happened. Someone saw the sparkle of the keys and a glint in the windscreen and thought, “what could possibly go wrong?”.

His question was answered when the vehicle he was driving became integrally connected with another vehicle. This led to a claim notification under his employer’s General Liability policy for damage to two third party vehicles.

The question that then arose was whether vicarious liability for the insured would still apply if the employee disobeyed the employer’s instructions. For the employer to be liable there are three criteria that need to be met:

1.     There must be an employer-employee relationship at the time of the act/omission,

2.     The employee must have committed a wrongful act/omission,

3.     The employee, at the time of the action, must have acted within the course and scope of his job

It is the third requirement which can pose a potential dilemma in a situation such as the one outlined above where the employee has seemingly deviated from his normal duties. This is a matter which the courts have considered in K v Minister of Safety and Security 2005 (6) SA 419 (CC) as well as Feldman (Pty) Ltd v Mall 1945 AD 733.

Essentially the issue comes down to whether or not the employees’ activities, even in contravention of their job description, are sufficiently connected to their job.  If an employee has abandoned his work entirely in favour of pursuing his own activities then the employer cannot be held legally liable. However, if the activities in which the employee is taking part essentially amount to negligence in the performance of the job itself then the employer may indeed be held liable for the harm arising out of those activities.

It can therefore be seen that although the security guard taking the vehicle may seem to negate the employer’s liability, the act was sufficiently close to the performance of his duties that the insured can be held liable for the damage.

Once the insured’s legal liability has been established, the question arises if the policy will respond. In this regard the issue was whether or not this claim would be rejected based on the fact that there is an exclusion of employee dishonesty. Theft, as a form of dishonesty, would not be applicable as an exclusion in this case since the item never left the premises of the third party and it had never been the intention of the employee to deprive the customer of their vehicle. Given the aforementioned point, it is also our position that this exclusion is not applicable to this specific claim as the motives of the employee were never to cause harm or damage.

While some underwriters may reject a claim such as this one, we maintain that it should fall within the ambit of a General Liability policy. 

 
Source: Camargue Underwriting Managers
 
« Back to previous page Print this page » |
 

Breaking News »

What is the difference between Black Friday and Cyber Monday?

Cyber Monday originated in the US and is a marketing term used for the Monday after Thanksgiving. It was created by retailers to encourage people to shop online. The term was coined by Ellen ...
Read More »

  

Interview with Bright Rock CEO, Schalk Malan about their ground-breaking temporary disability cover

In October 2019 Needs-matched life insurance provider, BrightRock, announced enhancements to their temporary expenses cover. Read More More recently Insurancegateway® Interviewed Schalk Malan to not only ...
Read More »

  

The Importance of an effective online campaign

As we enter the age of the fourth industrial revolution, a technological transformation driven by the internet, it seems almost unthinkable that the web would not be the preferred platform chosen by businesses ...
Read More »

  

Genesis Medical Scheme announces the lowest contribution increase for 2020

Across the private healthcare industry in South Africa, members of medical schemes are bracing themselves for a 10% increase in their 2020 contributions, exceeding the general inflation rate by 4. With average ...
Read More »

 

More News »

Image

Investment »

Image

Life »

Image

Retirement »

Image

Short-term »

Image
Image
Image
Image
Advertise Here

From The Glossary »

Icon

Inflation-linked Bond:

A bond issued either by government or corporations which links the interest payable and the principal amount payable at maturity of the bond, to inflation.
More Definitions »

 

Advertise

 

eZine

 

Contact IG

 

Media Pack

 

RSS Feeds

By using this website you agree to the Terms of Use.
Copyright © Insurance Gateway (Pty) Ltd 2004 - 2019. All Rights Reserved.