How much control does the Insured need to have over an item before the policy considers the item to be in the Insured’s custody and control?
- Consider the following scenarios:
- The owner leaves the petrol attendant to wash the window of locked vehicle while buying a magazine at the kiosk.
- The owner leaves the vehicle with the garage for a week so that they can replace the engine.
- Policy wordings seldom define the extent of ‘custody and control’. South African law does not provide much by the way of additional clarity either.
- It is the position of one legal practitioner that an item can be considered to be in the Insured’s custody or control when the Insured exerts more influence over the item than anyone else does. In other words:
- While at the Kiosk, the abovementioned vehicle owner still has more influence of the vehicle than what the petrol attendant does. E.g. if the attendant decided to tow the vehicle to another parking bay, the owner would return swiftly and loudly to stop the move. This clearly shows that the vehicle is not in the attendant’s custody or control.
- While undergoing engine repairs, the mechanic would undoubtedly be able to move the vehicle to a more suitable location in the workshop without interference from the owner. This illustrates that the mechanic has taken the vehicle into his custody.
Introduction to Liability