Donald Dinnie

No special circumstances when sentencing a doctor for culpable homicide

By Donald Dinnie on November 25, 2020 Posted in General

The Constitutional Court in Van der Walt v The State set aside a doctor’s criminal conviction for culpable homicide on the basis of irregularities committed by the regional magistrate, which infringed the doctor’s right to a fair trial. The conviction was not set aside on the merits. Therefore, whether the doctor’s guilt was proved beyond a reasonable … Continue reading

The contra proferentem rule and insurance policies – again

By Donald Dinnie on November 19, 2020 Posted in Insurance

The application of the contra proferentum rule was one of the issues which the English High Court considered in Financial Conduct Authority v Arch Insurance (UK) Limited and Others. The rule provides that where there is doubt about the meaning of a contract, the words will be construed against the person who proffered them. The … Continue reading

D & O insurance and reflective loss claims

By Donald Dinnie on November 16, 2020 Posted in Insurance

At common law when a wrong is done to a company only the company can sue for the damage caused to it. That does not mean that the shareholders of the company may not consequentially suffer any loss (what is known as a reflective loss). Any negative impact the wrongdoing has on the company is … Continue reading

COVID-19 infectious disease extensions and the FCA test case

By Donald Dinnie on November 12, 2020 Posted in Insurance

The English high court, in a test case between the Financial Conduct Authority and Arch Insurance (UK) Limited and a number of other insurers, engaged in a nuanced analysis of their different policy wordings relating to business interruption cover for COVID-19 related losses. The court largely sought to resolve causation issues by interpreting each policy. … Continue reading

International contracts, arbitration and choice of law

By Donald Dinnie on November 4, 2020 Posted in General

For international commercial contracts subject to an arbitration agreement to resolve disputes (including insurance or reinsurance agreements), two systems of national law may be engaged: The law governing the contract from which the dispute has arisen. The law governing the arbitration. That is usually the law of the seat of the arbitration – the place … Continue reading

Medical malpractice claims, adverse inferences and res ipsa loquitur

By Donald Dinnie on October 31, 2020 Posted in General

The Eastern Cape MEC for Health was held vicariously liable for the negligent conduct of provincial hospital nursing staff in failing to take the necessary steps to ensure that a patient’s wound was properly assessed and cleaned and that all debris, specifically a large shard of glass, had been removed. The patient’s wound became infected … Continue reading

Insurance policy interpretation contra proferentum – armed robbery, theft and hijacking

By Donald Dinnie on October 5, 2020 Posted in Insurance

The Gauteng High Court considered what constitutes armed robbery, theft and hijacking as indemnifiable events under an insurance policy in Anabella Resources CC v Genric Insurance Company. The policy did not contain a definition of armed robbery and the definition of theft and hijacking required ‘actual lawful control’ by the insured or its employees of … Continue reading

Defences to liability for dog bites

By Donald Dinnie on September 16, 2020 Posted in General

The owner of a dog that attacks a person who neither provoked the attack nor by their negligence directly caused their own injury is liable, as owner, to make good the resultant damages. Based on Roman law, for nearly 200 years the law in South Africa has been accepted that owners of animals are strictly … Continue reading

COVID-19 insurance: closure orders are not physical loss (USA)

By Donald Dinnie on August 25, 2020 Posted in Insurance

An American court has confirmed that government shutdown orders did not constitute ‘direct physical loss’ that would trigger an indemnity under the commercial insurance held by a group of restaurants (in Rose’s 1 LLC et al v Erie Insurance Exchange). The court said that: insurance policies are to be enforced in accordance with the real … Continue reading

Interpreting insurance contracts: a refresher (part 5 – fairness and reasonableness)

By Donald Dinnie on August 6, 2020 Posted in Insurance

A court may not refuse to enforce contractual terms on the basis that the enforcement would, in its subjective view, be unfair, unreasonable or unduly harsh. It is only where a contractual term or its enforcement is so unfair, unreasonable or unjust that it is contrary to public policy that a court may refuse to … Continue reading

Fraudulent insurance claim denied

By Donald Dinnie on July 30, 2020 Posted in Insurance

The insured, in an Israeli Supreme Court case, claimed under a jewellers block policy alleging he had been a victim of a violent robbery in which diamonds and cash worth approximately $11 million had been stolen. The evidence established that diamonds worth about $6 million of the claim were in the insured’s stock and had … Continue reading

Interpreting insurance contracts: a refresher (part 4 – fraudulent claims)

By Donald Dinnie on July 28, 2020 Posted in Insurance

At common law, in the absence of a fraud clause in the insurance policy, fraud can only be relied upon to the extent to which it prejudices the insurer. If an element of the claim is fraudulent only the fraudulent portion of the claim is forfeited at common law. There is no implied term in … Continue reading

Arbitration clauses usually do not survive termination of contract for fraud

By Donald Dinnie and Patrick Bracher (ZA) on July 21, 2020 Posted in General

An arbitration or similar adjudication clause, contained in an agreement that is found to have been induced by fraud, does not survive the avoidance of the agreement. That would be offensive to justice. The position can only change if the parties specifically make provision in their contract for a dispute regarding fraud, misrepresentation or concealment … Continue reading

COVID-19, business interruption and physical damage

By Donald Dinnie on July 19, 2020 Posted in Insurance

In South Africa and the United Kingdom, coronavirus coverage disputes are centring around the interpretation of various non-damage extensions provided under the policy’s business interruption section. In North America, both in Canada and the United States, the focus has been whether COVID-19 caused direct physical loss or damage to the insured property triggering business interruption … Continue reading

Interpreting insurance contracts: a refresher (part 3 – ambiguity)

By Donald Dinnie on July 16, 2020 Posted in Insurance

Ambiguous insurance contracts may be construed against the insurer. In case of doubt and where there is ambiguity a contract, including an insurance policy, may be construed against the contracting party by whom it was formulated. This is generally known as the contra proferentem rule (see for example, Pereira v Marine and Trade Insurance Co … Continue reading

Interpreting insurance contracts: a refresher (part 2)

By Donald Dinnie on July 13, 2020 Posted in Insurance

An insurance contract is presumed to require that the insured peril must be the proximate cause of the insured’s loss (see Incorporated General Insurance Ltd v A.R. Shooter trading as Shooter’s Fisheries 1987). Causation involves two distinct enquiries namely factual causation and then legal causation. The test for factual causation is generally described as the … Continue reading

Business interruption, infectious disease extensions and causation

By Donald Dinnie on July 10, 2020 Posted in Insurance

Readers will have seen the recent Guardrisk judgment. The applicant, a Cape Town restaurant, sought urgent declaratory relief that the insurer was obliged to indemnify it in terms of the business interruption section of the policy for loss suffered as a result of the closure of the restaurant from 26 March 2020. The infectious disease … Continue reading

Interpreting insurance contracts: a refresher (part 1)

By Donald Dinnie on July 2, 2020 Posted in Insurance

The Supreme Court of Appeal judgment of Centriq Insurance Company Limited and Oosthuizen contains a useful summary of the general principles of interpretation of insurance policies and other contracts: Insurance policies are contracts like any other. Contract provisions must be construed having regard to their language, context and purpose in what is a unitary exercise. … Continue reading

Avoidance and cancellation of non-life policies: The Comic Book Edition

By Donald Dinnie on June 12, 2020 Posted in Insurance

Welcome to Volume 5 of our Big Read Book Series: The Comic Book Edition. You can download your copy here, and identify your favourite insurance director. This volume should be read together with Volume 2 of the Big Read Book Series. Both deal with the avoidance and cancellation of non-life policies. We are pleased that … Continue reading

Defending an insured’s third-party claim and reserving insurer’s rights

By Donald Dinnie on April 28, 2020 Posted in Insurance

From time to time liability insurers may agree to begin defending a claim for an insured while reserving their rights to deny coverage because investigations are not yet complete. Sometimes the policy wording provides expressly for that situation. Or insurers may reserve their rights on an ad hoc basis While there is no South African … Continue reading

Condonation granted where no prejudice proved

By Rethabile Shabalala and Donald Dinnie on April 24, 2020 Posted in General

A plaintiff who suffers damage usually has 3 years within which to sue the defendant. But a claim against the State must be notified within 6 months of an incident occurring. This notification comes before the summons is served. If a claim is not notified within this time period (set out in the Institution of … Continue reading

Deciding between mutually destructive versions of oral agreement

By Hishaam Khan and Donald Dinnie on April 19, 2020 Posted in General

Where there are mutually destructive versions of an oral agreement, a court will side with the version which is more probable considering the circumstances. The credibility of witnesses, including whether their evidence is coherent and consistent, will be taken into account. The applicant in Meintjies v Annandale and another, an owner of an accounting business … Continue reading

You can’t take judicial notice of the behaviour of kudus – need expert evidence

By Rethabile Shabalala and Donald Dinnie on April 9, 2020 Posted in General

Is the behaviour of kudus so clearly established and common knowledge or so easily ascertainable that it does not require evidence to be proved? No. A trial court’s decision to take judicial notice of the behaviour and reaction of kudus was overturned on appeal. A court takes judicial notice of a fact without hearing evidence … Continue reading

COVID-19 and the insurance market

By Donald Dinnie on April 6, 2020 Posted in Insurance

Have a listen to my podcast discussion with the editor of Cover magazine on the potential implications of COVID-19 on the insurance industry in South Africa. We discuss business interruption insurance, liability insurance, event cancellations and travel insurance. Where to start in evaluating insurance exposure for brokers, insurers and reinsurers is covered. Traditional business interruption … Continue reading