CR380 Policy Exclusion: death due to participation in criminal act
Policy Exclusion: death due to participation in criminal act
Accident – Deceased hit by a train while allegedly walking on a railway line – Reliance by insurer on exclusion for death as a result of active participation in criminal act – Reference to Section 12(i)(h) of Schedule 1 of the Legal Succession to the South African Transport Services Act 9/89.
1. The deceased person was killed when he was struck by a train (“the incident”).
2. At the time of incident at approximately 05h15am:
- The deceased was a pedestrian
- A Metrorail train was en route to Umhlali
3. The incident occurred at a place at or near or along the railway line which, in the statement of the witness was only described as “126/391” and which, according to that statement, was the “precise place” where the incident occurred.
4. In the statement, the witness said this referring to the deceased: “To my knowledge the person had no authority to be present at the mentioned place and in my opinion, there was nothing that I or my employer could do to avoid the incident”.
5. There is no other relevant information about the incident, save for the following statement by the investigating officer of the South African Police: “The deceased was walking along the railway tracks at Shaka’s kraal when he was knocked down by a train travelling in his direction.”
6. The insurer justified its repudiation of the claim for the funeral policy benefit as follows:
- “It is confirmed that the direct cause of death of the deceased was due to illegal railway line crossing.
- The illegal crossing of a railway line is criminalised in terms of the following provision from the Legal Succession to the South African Transport Services Act 9 of 1989:
A “person who crossed a railway line without the authority of the Company of the Corporation, as the case may be, at a place where a level crossing or pedestrian crossing has not been constructed; shall be guilty of an offence and on conviction any competent court may impose, in its discretion, a fine or imprisonment, or a fine and imprisonment, or any other suitable punishment within its jurisdiction.”
- It is confirmed by the investigating officer that the deceased was hit by a train whilst walking on the railway line.
The matter was discussed at a meeting of the adjudicators. The meeting noted the following:
7. The insurer bore the onus of proof of the criminal act on which it relied for its repudiation of liability in terms of the policy.
8. According to the insurer, the deceased committed the offence set out in the second paragraph quoted in paragraph 6 above.
9. The following were the factual errors in the insurer’s letter, quoted in paragraph 6 above:
- There was no evidence that, at the time of the incident, the deceased was in the act of an “illegal railway line crossing”.
- The investigating officer did not say that the deceased was hit whilst walking on the railway line.
- There is no evidence of the fact that the deceased’s death arose while illegally crossing a railway line.
10. The offence in question can only be committed by a person
- Who crosses a railway line and
- At a place where there is no level crossing or pedestrian crossing
11. There was no evidence:
- that the incident occurred while the deceased was crossing a railway line or
- that the incident occurred at a place where there was no level crossing or pedestrian crossing.
12. The witness’s evidence and that of the investigating officer did not prove the commission by the deceased of the alleged criminal act.
13. It was a unanimous finding of the said meeting that the insurer did not discharge the said onus and that it was liable for the payment of the said benefit.
14. The insurer accordingly paid the claim.