As framed the exclusion clause required a causal link, albeit only indirectly, between the criminal act and the claim event, the deceased’s death, and in the case concerned there were two possible criminal acts at stake. The first was that the deceased had driven the motor vehicle without being licensed to do so, and the other that, when the accident happened that resulted in his death, he was allegedly driving negligently.

The insurer’s contention was that when an unlicensed person drives a motor vehicle it is in every case foreseeable that he might be involved in an accident, and that he thereby creates a “greatly increased risk of having an accident”. The contention is incorrect, however, because driving without a licence cannot on its own constitute negligence as such. It is only if one is not proficient at driving that it might be said to be negligent to take to the road as a driver, and in the instant case there was no evidence that the deceased was not proficient. On the contrary, it appeared that the deceased had been driving the vehicle for three years, for the first eighteen months under a learner’s licence and thereafter without any licence at all.

The office was nevertheless prepared to assume, without finding, that the deceased had indeed not been proficient and that it was negligent of him to have taken to the road. The ultimate question was nevertheless whether it was that negligence that could be causally connected to the accident. In this regard the office was of the view that, without more, even evidence that he was not generally proficient did not prove, either prima facie or at all, that the fact that the deceased drove without a licence was causally connected to the deceased’s death, and to illustrate this the Ombudsman wrote to the insurer, using the following scenarios as examples:

• “Let us assume, as one possibility, that the deceased was involved in a collision with another vehicle, that the evidence establishes that the negligence of the other driver was entirely to blame for the collision, and that the deceased was not negligent in any way, either in relation to the collision or at all. It is obvious that in such a case there is no causal connection between the deceased’s driving, with or without a licence, and the accident.

• Let us assume, as another possibility, that a collision occurs between two motor vehicles entering a traffic light controlled intersection at right angles to each other, and that the issue is which of the two motorists entered the intersection against the red light. Let us assume further that some witnesses testify that it was the vehicle driven by the unlicensed driver that did so, while others testify that it was the other driver. When a court, and therefore the office, evaluates the evidence in order to determine which of the versions should be accepted on the probabilities, the fact that one of the drivers was unlicensed is irrelevant, because the question is not what risks he undertook by driving the vehicle in the first place, but whether he was in fact negligent in relation to the collision itself.

• Let us assume, as a last possibility, that an unlicensed person drives around town for two hours, at all times driving perfectly proficiently, but is then negligent and thereby causes a collision. It will be his negligence at the end of the two hours, in other words his negligence in relation to the collision, that will causally have linked the collision to the criminal act. From this it will be appreciated that if the unlicensed driver was not negligent in relation to the collision, then no amount of negligent driving in the two hours that might have preceded the collision could have any bearing on the question of causality.”

In the result the ultimate question, indeed the sole and only question is whether the deceased, whether licensed or unlicensed, had driven negligently in causing the accident, and the fact that he was unlicensed is therefore irrelevant. In this regard the insurer persisted in its contention that the fact that a driver is unlicensed is relevant evidence and as such would have to be thrown into the scale of probabilities in order to determine whether the driver was negligent in causing the accident. This is in fact not so, because the fact that he may have been unlicensed is not evidence of what actually occurred when the accident happened and is therefore irrelevant to the question.

One of the insurer’s contentions was that, in order to discover whether a causal link exists, the forseeability test is applicable. While that may be so it would still not result in establishing causality. What is foreseeable if an unlicensed and unpractised driver takes to the road, is not simply that he may be involved in a collision, but that he may drive negligently and as a result be involved in a collision, which takes one back to the single and only question whether, in relation to the collision, the deceased was negligent in causing it.

Finally, the insurer relied on statistics that sought to show that a significant number of collisions involve motor vehicles being driven by people who do not hold valid licences. As stated above, however, the only issue is whether in the given case the life insured was in fact negligent in causing or contributing to the collision, and statistics do not constitute evidence either on that question or at all. On the contrary, statistics are figures that reflect what has happened in other cases, and while they may be accurate as far as they go they do not constitute evidence of what actually happened in any given case in which the question of whose negligence caused the collision is in issue. Statistics therefore constitute evidence that is once again irrelevant, in the end in fact begging the very question at issue, which as stated above is whether in the instant case the deceased was driving negligently and if so whether such negligence contributed at all to the collision.