Donald Dinnie

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Subrogation and Medical Schemes

Van Tonder v Road Accident Fund (1736/2020; 9773/2021) [2023] ZAWCHC 305 (1 December 2023) The court consolidated two matters against the Road Accident Fund, for payment of each plaintiff’s past medical and hospital expenses, which were rejected by the RAF due to the fact that both plaintiffs were members of private medical aid schemes, who … Continue reading

Insurance Brokers and Restraint of Trade

TWK Agri (Pty) Ltd v Botha and Others (J125/2023) [2023] ZALCJHB 42 (7 March 2023) Restraint of Trade Upheld. TWK, the applicant, is a broker of non-life and life insurance, with products marketed by a network of brokers. MRA Brokers, the third respondent, is a competitor broker. Botha and Strydom, the first and second respondents, … Continue reading

Insurance Mergers, Competition Law and Approval of Acquisitions

Three 2023 decisions of the Competition Authorities provide a useful guide to their approach to insurance acquisitions in South Africa and expansion into Africa. Sanlam Emerging Markets Proprietary Limited and Another v SAN JV (RF) Proprietary Limited  [2023] ZACT 40; [2023] 3 CPLR 44 (CT) (17 August 2023) In August 2023, the Competition Tribunal … Continue reading

Relying on res ipsa loquitur when the roof falls in

Res ipsa loquitur (the thing speaks for itself) refers to the inference of negligence drawn from the facts of a particular occurrence, where the occurrence itself is the only available fact from which such negligence can be deduced.  Does res ipsa loquitur apply in cases involving falling objects? In Eze v Adderley Body Corporate (, … Continue reading

How not to prosecute an insurance claim

This is a strange judgment from the Pretoria High Court.  The insured sought an order that the insurer pay the alleged value of his motor vehicle, after it had allegedly been written off in an accident. The court noted that the insurer had “repudiated his claim due to non-disclosure of material information at the inception … Continue reading

Farmers liable for motorist’s collision with calf

The claimant sued two farmers for damages sustained following a collision with the defendants’ calf on the N8. The claimant sustained injuries when he swerved to the left to avoid the calf on the road. The defendants were found liable for the damages sustained by the claimant as a result of the collision for their … Continue reading

Sky UK Limited v Riverstone Management Agency Limited

Contractors All Risks Insurance:  Any One Event (UK) – Part 3 In this judgment, discussed previously [here and here] the final issue for determination was the question of application of the insured’s Retained Liability.  The relevant clause read: “The policy deductible was €10 000 each and every loss, but there was a deductible for claims … Continue reading

Certification of class actions and triable issue

This recent High Court judgment warns that class action certification is not there for the mere asking. The lengthy 125-page judgment canvases issues such as the suitability of the class representatives, commonality, funding arrangements, litigation funders, contingency fees and whether there exists a cause of action raised on a triable issue. It is worth a … Continue reading

The War Exclusion & Proximate Cause (UK)

In this court of appeal judgment, the court upheld the findings of the lower court discussed here. The question was whether loss or damage caused in 2021 by the controlled detonation of a previously undiscovered World War II bomb was “occasioned by war” and excluded by the applicable insurance policy. Damage had been suffered to … Continue reading

Debarment orders, administrative penalties and procedural fairness under the Financial Sector Regulation Act

The Supreme Court of Appeal in this judgment, found that sections 154, 167 and 231 of the Financial Sector Regulation Act 2017 are not unconstitutional nor invalid. The correct interpretation of section 154 (which entitles the Financial Services Conduct Authority to make a debarment order after consultation) is that it does not exclude the Authority from … Continue reading

Builder’s risk insurance: Perils exclusion (USA) – Part 3

In this judgment considered here and here the policy under consideration included an Extension which deleted the previous Perils Excluded wording and replaced it with: “All costs rendered necessary by defects of material workmanship, design, plan or specification and should damage (which for the purposes of this exclusion shall include any patent detrimental change in … Continue reading

Builder’s risk insurance: Is honeycombing of concrete ‘damage’? (USA) – Part 2

In this judgment, discussed in part 1 here the insurer in rejecting the claim argued that the insured property had to be altered, not merely defectively constructed, in order to constitute “physical loss” or “damage”.  The insurer argued that the insured property was not altered because the honeycombed concrete components were defective from the time … Continue reading

Motor vehicle insurance and proof of quantum

In this appeal judgment, the court dealt with an insurance claim in which the insured’s motor vehicle was written off in a collision. The insured claimed damages in his summons based on the market-related value of the vehicle. The issue on appeal was whether the insured had produced evidence that supported his pleaded case on … Continue reading

Builder’s risk insurance: Is honeycombing of concrete ‘damage’? (USA) – Part 1

In this judgment the insured was hired to build a bridge and obtained a “builder’s risk policy” from the insurer. In building and integrating the supportive structures of the bridge, the insured’s poor vibration of concrete resulted in construction formations known as honeycombing and voiding which harmed the structural integrity of the bridge.  Consequently, the … Continue reading

Insurance – breach of warranty and material misrepresentation         

In this recent judgment the insurer unsuccessfully rejected policy liability on the basis of a material misrepresentation, alternatively, breach of a warranty. Insurance had been obtained for a once-off all-risks transit cover for personal protective equipment face masks. In proposing for the insurance, it was recorded that the transit would be done by professional third-party … Continue reading

Minimum facts required for prescription

This Supreme Court of Appeal judgment grappled with whether the claim involving latent and undisclosed defects discovered sometime after the claimant had purchased the property, had prescribed. It is well established law that the debt becomes due, and prescription begins to run, when the creditor has the minimum facts necessary to institute action. The running … Continue reading

Policy interpretation and contracts work exclusion (Australia)

In this October 2023 appeal the Australia supreme court dealt with complex facts and interpretation regarding the application of a contracts work exclusion in the insurer’s home insurance policy. The insured’s substantial residential home was destroyed by a fire while undergoing renovation works and had to be demolished.  The fire started in a green rubbish … Continue reading

More about contra proferentem (Australia)

In this recent Australian judgment the appeal court said: “The contra proferentem principle is a rule of last resort. The rule acknowledges that, in cases of ambiguity, a liberal approach may be adopted in the construction of an insurance contract. However, it is preferable that the court should struggle with the words used as applied … Continue reading