Donald Dinnie

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‘Occurrence’ in insurance policies

The test enunciated by the English court in Kuwait Airways Corporation v Kuwait Insurance Co [1996] 1 Lloyds Rep 664, confirmed in Mann and Another v Lexington Insurance Company [2000] is no different in South African law. “An ‘occurrence’ (which is not materially different from an event or happening, unless perchance the contractual context requires … Continue reading

The Big Read Book series – Volume 4

Norton Rose Fulbright’s collection of South African insurance judgments for 2019 is now available here. 2019 saw a limited number of insurance disputes determined by way of litigation. The various alternative dispute resolution mechanisms used by the insurance industry continue to function well and deliver a tremendous service to insured and insurer alike. Volume 4 of … Continue reading

Insurance claims and COVID-19

If you haven’t already dusted off the business interruption, liability and event cancellation policies you have underwritten, or placed for an insured, and checked for coronavirus coverage, now is the time to do so. Exposure and benefits of both business interruption coverage (covering the insureds losses from an abrupt shutdown) and contingent business interruption coverage … Continue reading

Interpretation of an EAR Policy’s defect exclusion clause

A Greek appeal court was recently called upon to interpret the exclusion under the Contractors’ Erection All Risks Policy which read: “the insurer shall not Indemnify the Insured for … The cost of replacement, repair or rectification of loss due to defective material and/or workmanship. This exclusion shall be limited to the insured items directly … Continue reading

Disclaimers and the Consumer Protection Act

For the first time, a South African court in Van Wyk v UPS dealt with the application of the Consumer Protection Act to disclaimer clauses in a contract. On the facts, the court applied sections 22, 49 and 52 to sever from the agreement the specific clauses on which the defendant sought to escape liability … Continue reading

Causation, the ‘but-for’ test and flexibility

A defendant is not liable unless their wrongful conduct in fact causes the claimant’s harm. The defendant is also not liable merely because their conduct in fact caused the claimant’s harm. There must be both factual and legal causation. The long accepted test of factual causation is the ‘but-for’ test. One asks whether the claimant’s … Continue reading

Gross negligence carve-outs

Often ‘gross negligence’ is used as a carve-out from a no-liability clause. The Consumer Protection Act expressly provides that a supplier cannot exclude liability for gross negligence. Negligence is the deviation from the standard of care expected of a reasonable person in the particular circumstances. Clearly more than mere negligence is involved when a person … Continue reading

Euthanasia in South Africa

The debate around euthanasia and its legal implications has stirred again due to the 2019 case of Professor Sean Davison, charged with three counts of murder in circumstances where the individuals had asked him for assistance in their deaths. Understandably, faced with a long prison sentence if convicted of murder, Professor Davison concluded a court-approved … Continue reading

Insurers, personal injury damages and medical expenses

Insurers dealing with and defending personal injury claims under a liability policy should bear in mind the general principles regarding claims for damages in those cases. The plaintiff who claims damages for the cost of future medical expenses bears the onus of proving the damages claimed and that the damages claim is reasonable. Generally it … Continue reading

Reviewing the law on ‘reasonable precautions’

The reasonable precautions clause which commonly appears in policies requires the insured to take reasonable steps to safeguard the insured property or prevent accidents and minimise loss, damage or liability (or variations thereof). The clause most likely requires proof of recklessness on the part of the insured but interestingly, there is no authoritative judgment by … Continue reading

Responsibility of resort for sexual assault of guest

The terrible and harrowing tale of an 18 year old mildly intellectually impaired woman can be read in the judgments of the high court (Bridgman NO v Witzenberg Municipality and others) and the appeal judgment of Witzenberg Municipality v Bridgman NO and others of 3 December 2019. Both the lower and appeal court had no … Continue reading

Insurance, consensus and non-existent property

The basis for contractual insurance liability is actual consensus supported by the insureds’ and the insurers’ serious intention to be legally bound to what they have agreed to. There is no consensus if there is a material mistake relating to the identity of the parties to the insurance contract, or the object of the risk, … Continue reading

Offers of settlement and time-bars in insurance policies

In South Africa, for example, under the Policyholder Protection Rules or the Short-term Ombud’s Rules the running of statutory prescription and time-bar limitation periods provided for in an insurance policy may be suspended while a dispute is resolved. German law also provides for some circumstances in which the limitation period in an insurance coverage dispute … Continue reading

When does a claim under a liability policy prescribe?

A claim for indemnification under a liability insurance contract only arises when liability to a third party for a certain amount has been established. For purposes of prescription, the debt becomes due when the insured is under legal liability to pay a fixed and determined sum of money. Until then a ‘claim’ for indemnification under … Continue reading

Medical malpractice: A USA birth injury comparison

South African healthcare practitioners and insurers may take some comfort (on the basis that the grass is not greener) from the jury verdict of an Illinois, US Court in a medical malpractice claim against the West Suburban Medical Center and others. The jury awarded a record US$100.6 million damages against the hospital in respect of brain … Continue reading

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
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