Donald Dinnie

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Loss adjusters’ reports may not be privileged

Loss Adjusters’ reports are only privileged where the reports are prepared in contemplation of litigation and for the purpose of seeking legal advice. But it is not every insurance claim where litigation is likely or reasonably anticipated. The sole or dominant purpose of the creation of the report need not be for the purposes of … Continue reading

Mediation in the High Court

Successful mediation of any dispute is largely dependent on the skills and expertise of the mediator and the willingness and good faith of the parties to the mediation to engage in that process. So it is to be welcomed that the proposed new High Court Rule 41A doesn’t make mediation compulsory but is rather intended … Continue reading

The Big Read Book Series

Norton Rose Fulbright’s insurance practice is excited to announce the launch of its Big Read Book Series with the publications of Volume 1 and 2 in the series. The series is part of the insurance practice’s contribution to resourcing the insurance industry. Volume 1 is a collection of South African insurance judgments of 2018. Volume … Continue reading

Expert evidence

Parties to any dispute who rely exclusively on opinions of experts without establishing the factual basis for those opinions do so at their peril. The opinion of an expert must be based on facts that are established by the evidence. The court then assesses the opinions of experts on the basis of ‘whether and to … Continue reading

Presenting your evidence in the small claims court

The small claims court resolves matters speedily, inexpensively and informally. Whether you are the claimant (plaintiff) or the party opposing the claim (the defendant), you must conduct your own case in court without legal representation. Here are some tips on dealing with your small claims court case. Proceedings are inquisitorial so the commissioner plays an … Continue reading

The increasing need for risk management advice by lawyers

The risk landscape has led business people, and their legal and compliance teams, to bemoan the business world in which we live. Unsurprisingly, regulatory compliance is the top risk for most industries. Navigating the risk landscape is now a significant focus of businesses and while traditionally accountant-firm driven, risk advisory services offered by law firms … Continue reading

Redefining legal practice

Technological and business model disruption has spurred Norton Rose Fulbright’s focus in seeking new inventive solutions for clients. We are working with new and emerging technology to drive efficient legal services and to reduce costs. We are already providing cutting edge legal-tech solutions, and this will grow. For example, our ‘POPI Counsel’ is in essence … Continue reading

Law Commission report on medico-legal claims for comment by 30 September 2017

The South African Law Reform Commission has issued a lengthy paper on the investigations into medico-legal claims with proposals for the reform of the law in connection with those claims. The paper discusses the current situation and the legal principles underlying claims for damages for medical negligence, state liability, the basis for payment of compensation … Continue reading

Specialty lines insurance in Africa

Africa’s largely untapped specialty lines insurance market has significant opportunities for insurers willing to enter the region. As the market develops, more difficult and unusual risks will be written. Regulations which vary by country must be considered. For example, placing insurance with a locally licensed insurer is often a requirement or a percentage of the … Continue reading

Assisted suicide and doctors’ culpability

The Stransham-Ford judgment elicited much debate not only from a legal perspective but an ethical one. Both the Health Professions Council and the Ministry of Health have indicated that they are opposed to doctors playing any role in assisted suicide. In South African law the position remains according to the Stransham-Ford judgment that unless the … Continue reading

Contracting out of legislative protection

The law obliges medical schemes to pay the costs of treating prescribed minimum benefit conditions in full. The Supreme Court of Appeal in The Council for Medical Schemes v Genesis Medical Scheme provides a useful reminder of when a party may waive rights conferred by law for their benefit. The Medical Schemes Act does not … Continue reading

Setting aside an arbitration agreement

The Constitutional Court judgment in De Lange v Presiding Bishop of the Methodist Church of Southern Africa dealt with a number of interesting issues. One was whether good cause existed, as contemplated by the Arbitration Act, to set aside an arbitration agreement concluded between the parties. Neither the Arbitration Act nor our courts have expressly … Continue reading

Avoiding a policy for innocent over-valuation

Innocent over-valuation of insured property may entitle insurers to avoid a policy on grounds of material non-disclosure. There are no South African judgments on the point but an English court, dealing with a claim for a constructive loss of a super-yacht, “The Galatea“, reluctantly confirmed it was possible. In Involnert Management Inc v Aprilgrange Limited … Continue reading

Circumstances where the common-law ought to be developed

At common-law a lessee or a sub-lessee has no right to question the lessor or sub-lessor’s right to occupy property. The Constitutional Court was asked to develop the common-law in Mighty Solutions CC t/a Orlando Service Station v Engen Petroleum Ltd to require the lessor to establish its independent title to the property when claiming … Continue reading

Damages for repudiation of a contract

The law allows an innocent party to cancel a contract where the counter-party has wrongfully repudiated a contract, and then to claim damages. In calculating the damages, however, events following repudiation must be taken into account where the events would have reduced the value of performance, even without a breach, had the contract continued in … Continue reading

Non-disclosure, misrepresentation and waiver of the insurer’s right to avoid the policy

In an English court judgment in Brit UW Limited v F&B Trenchless Solutions Limited the insurer successfully sought a declaration that avoided a contractor’s combined liability policy. The policy had been issued to the insured as a specialist tunnelling contractor. A derailment of a train occurred at a site where the insured had recently constructed a … Continue reading

The dangers of compromising subrogation rights

The principle is trite that an insurer who pays the insured’s loss so that the insured receives a full indemnity has the right to step into the insured’s shoes and bring an action against the person responsible for the insured’s loss. Many policies also now provide for contractual subrogation even in circumstances where a complete … Continue reading

When is liability insurance triggered in layered cover?

In the UK, as in South Africa, liability insurance is triggered when the insured becomes “legally liable to pay the third party claim”. This requires a judgment, settlement or arbitration award. That does not mean the insured, with layers of insurance, can choose which claims to meet first from primary or lower excess layers in … Continue reading

Follow the settlements clauses

It is worth reminding ourselves about the useful findings in the UK Tokio Marine v Novae Corporate Underwriting case in 2013 regarding follow the settlements clauses: Where a retrocession by a reinsurer is expressed in general and unqualified terms it includes liability under all underlying policies. The reference to “loss occurrence” under the retrocession was construed … Continue reading

Insurers proving material non-disclosure

An insurer who wants to avoid a policy must prove a material non-disclosure by the insured on a balance of probabilities. That is normally done by way of leading oral evidence and the process of cross-examination. It is unusual, although not unheard of, for oral evidence to be dispensed with and questions of non-disclosure to … Continue reading

Combating insurance fraud

Even though the law discourages fraudulent insurance claims, South African insurers still have to protect themselves when it comes to fraud. While the English courts apply draconian and deterrent laws to prevent fraud, South African law only disallows the portion of an insurance claim that is fraudulent. The valid part of a partially fraudulent claim … Continue reading

The importance of preserving medical records

The judgment in Khoza v MEC for Health and Social Development, Gauteng re-emphasises the utmost importance of maintaining and preserving all hospital and medical records in the original state. This was a cerebral palsy claim for brain damage sustained during a birth at a provincial hospital. The CTG records had gone missing without any explanation. … Continue reading