Donald Dinnie

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Insurance, liquidation and business rescue

Insurance policies, particularly commercial policies providing business interruption, may contain provisions dealing with the consequences which flow for the parties, and the question of continuing cover and any indemnity, in the event of the liquidation of an insured. The relevant clauses are often outdated and should be reviewed having regard to the relevant provisions of … Continue reading

Warranty and Indemnity insurance

Insurers and intermediaries involved  in providing warranty and  indemnity insurance will be interested in this recent judgment dealing with contractual warranties and an indemnity of EBS International (Pty) Limited and  another v Shaun Edward Wright and which is relevant to any subrogated recovery. The seller had represented that its tax affairs were in order. Those … Continue reading

Fraudulent insurance claims

Recent media reports highlight the challenges faced by the insurance industry in dealing with fraudulent insurance claims. Reportedly South African life insurers detected 4287 fraudulent and dishonest claims worth R787.6 million for the 2021 year. This blog frequently reports on South African judgments, and those from around the world, dealing with rejection of fraudulent claims. … Continue reading

Declining to quote is not a refusal to insure

In this matter the question arose whether there had been a material non-disclosure of a refusal by an insurer to insure. The relevant insurer had declined to furnish a quotation. In proposing for the insurance, the insured had been asked four questions which the court categorised as referring to the insurance cover in existence at … Continue reading

Blog: Covid-19 Vaccine injury no-fault compensation scheme

This no-fault compensation scheme previously discussed here, has now amended regulations and directions published on the 4th April 2022, available here. The purpose of the Scheme is to provide expeditious and easy access to compensation for persons who suffer from a Covid-19 Vaccine Injury caused by the administration of an improved Covid-19 vaccine. Injuries covered … Continue reading

Insurance and meaning of self-insured retention (US)

A self-insured retention is the amount of loss that a policyholder must pay out of pocket before coverage kicks in. In this judgment Colonial Pipeline Company v AIG Specialty Insurance Company, 1:19 –cv-762-MLB (US District Court Georgia, the policy included a US$10 million self-insured retention.  The insurer would “pay covered Loss, in excess of the … Continue reading

Pollution Exclusions and a Possible Claim (US)

In this judgment Colonial Pipeline Company v AIG Specialty Insurance Company, 1:19 –cv-762-MLB in the US District Court Georgia the insured had discovered a gasoline leak in its petroleum system which caused the insured substantial damages.  The insurer declined to indemnify the insured for those damages. One of the disputes was whether the policy covered a … Continue reading

Close Corporations and derivative actions

This Supreme Court of Appeal judgment confirms that the common law derivative action is available to members of close corporations. The common law derivative action was abolished in section 165(1) of the Companies Act and replaced with a statutory derivative action for companies. Sections 49 and 50 of the Close Corporation Act do not exclude … Continue reading

Opt-out class actions – a review and a certification

This judgement contains: a very useful review of the development of class actions in South African law; a consideration of whether to certify the particular class action on an opt-out or opt-in basis and decides that the interests of justice warranted certification of the class action on an opt-out basis. An opt-out class action automatically … Continue reading

Privately agreed dispute resolution rules, adjudication and the constitution

Where parties voluntarily agree a dispute resolution procedure and its rules by way of contract, they will have great difficulty in successfully alleging that those rules are unconstitutional. Our Constitutional Court has already held that as a matter of principle private arbitration is not unconstitutional and in that regard the “courts should be respectful of … Continue reading

Review of a decision by the Life Insurance Ombudsman

In this recent judgment the insurer rejected the life policy claim of the executor of the deceased estate relying on an exclusion in the policy that liability would not arise where death resulted from a condition that pre-existed the existence of the policy if that death occurred before the expiration of twelve months from the date … Continue reading

The Role and Powers of the FAIS Ombud

This Supreme Court of Appeal judgment in The Ombud for Financial Services Providers and C S Brokers CC and Others [2021] ZASCA 117 is a reminder that section 20 of FAIS created the office of the Ombud as a mechanism for the speedy resolution of disputes which would otherwise be dealt with in court. A … Continue reading

Judgments and Peremption

The principles of peremption (abandoning a right of appeal by conduct inconsistent with an intention to exercise that right) were restated in this Constitutional Court judgment and are worth remembering. “Peremption is a waiver of one’s constitutional right to appeal in a way that leaves no shred of reasonable doubt about the losing party’s self-resignation … Continue reading

Rearranging the deckchairs – a slip and trip lesson

A Florida Federal jury has in this recent award apportioned fault equally between the claimant and the defendant cruise line operator. The passenger was injured when she tripped over deckchairs on one of the liner’s ships.  She was walking on a curved portion of the deck that was narrowed because the restaurant of the ship … Continue reading

The test for negligence

The test for negligence is straightforward and summarised in the frequently cited judgment of Kruger v Coetzee 1966 2 SA 428 A at 430 E-H  If a reasonable person would have foreseen the reasonable possibility of harm and would have taken reasonable steps to prevent it happening, and the person in question did not do … Continue reading

Medico-Legal Claims paper by South African Law Reform Commission for comments by 28 February 2022

The South African Law Reform Commission published its discussion paper 154 on medico-legal claims. The extended deadline for comments and submission is now the 28th February 2022. While acknowledging the constitutional right of access to the courts, the paper proposes that a system be developed to deal with public healthcare medico-legal claims commencing at the hospital. … Continue reading

Meaning of “accident” in Zambian insurance law 

In this Zambian judgment of Mattaniah Investments Limited and Zambia State Insurance Corporation Limited,  the Zambian High Court considered the meaning of “accident” in a policy which indemnified the insured for loss of broiler chickens due to “accident, disease and illness”. The court accepted that an “accident” is simply something unusual, unforeseen or an unexpected … Continue reading

Meaning of “whatsoever nature” and “howsoever arising”

In this particular judgment, discussed here the Supreme Court of Appeal held that the phrases “of whatsoever nature” and “howsoever arising” as used in the disclaimer clauses in the contract under consideration should be given their ordinary literal meaning. This is consistent with earlier judgments. Those clauses are sufficiently wide in their ordinary import to … Continue reading

The disclaimer clause lives!

In this judgment, the Supreme Court of Appeal upheld the defendant’s reliance on the disclaimer of liability provisions in its warehousing and distribution contract with the plaintiff. After reviewing relevant judgments on disclaimer clauses and principles, the judgment once again confirms that in appropriate factual circumstances and disclaimer wording, South African courts will uphold reliance … Continue reading

Rule 41A and Bad Faith Mediation – Part 3

A number of decisions in the United States courts confirm that there is such a thing as bad faith mediation.  Those are considered in this high court judgment. While those judgments are instructive, it is necessary to recognise the distinction between voluntary and coercive mediation. High Court Rule 41A is constructed on the premise of … Continue reading

Requirements for principal’s liability for conduct of third party service provider

This blog was co-authored by: Tristan Marot, associate designate In the high court judgment Legal Expenses Insurance Southern Africa Limited t/a Legalwise v Melamu, the high court confirmed that as a “general rule an employer is not liable for the wrongdoing of an independent contractor unless the employer was personally at fault.” The plaintiff sued a … Continue reading