Donald Dinnie

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Liability insurance welding exclusion – What is spark-producing equipment (Australia)

This December 2022 Australian judgment of Ritchie v Insurance Australia [2022] NSWCA 278) considered an event where two employees of the insured were engaged in installing reinforced steel into trenches as part of a residential building works and used a power cutter fitted with a cutting blade to cut reinforcing steel. The use of the … Continue reading

Insurance and a specified uncertain event (Namibia)

In this recent Namibian High Court judgment, the insurer argued that the policy was invalid, and could not be concluded, because the formation of an insurance contract depends on the happening of a specified uncertain event and that at the time of the conclusion of the policy the event was already certain. The insurer argued … Continue reading

Insurance and Reasonable Precautions

In Govender v Guardrisk, the insurer rejected liability under the policy on the basis that the insured had failed to “…take all reasonable precautions to prevent loss, damage, accidents…” as required by the relevant clause in the general terms and conditions of the policy. The defence failed because the insurer failed to prove that the … Continue reading

Life insurance and fraud

In this judgment (dealt with here on material non-disclosure) the second material issue dealt with by the court was whether the insured truthfully represented his medical conditions in relation to his continued ability to work. The insurer alleged that the insured did not tell either the insurer or the examining doctor that he could perform … Continue reading

Big Read Book Series Volume 11 Norton Rose Fulbright South Africa’s Review of South African insurance judgments of 2022 is now out. You can view / download a copy of it HERE. Big Read Book Volume 11 is a comprehensive review of all the significant South African insurance judgments delivered in 2022. Volumes 4, 7 … Continue reading

Life insurance and material non-disclosure

In this judgment, the insured had two life policies with the insurer, which included life cover, severe illness benefits, and income continuation benefits. The insured amended the policies a number of times, but on none of these occasions did the insured disclose that he had been diagnosed with and treated for clinical depression.  The court … Continue reading

Delictual liability: A text book claim

This blog was co-authored by Sebenzile Magagula, Candidate Attorney The plaintiff in this judgment sustained a lower back injury on the morning of his work shift in the defendant’s automotive manufacturing plant. The injury was sustained whilst operating the rear axle assembly line, shortly after he had been moved from the Press to the SSB … Continue reading

Liability for dangerous premises causing a slip & fall

This blog was co-authored by: Maano Manavhela, Candidate Attorney In this case, the claimant sustained severe bodily injuries when he stepped onto a powdery substance with his left foot and slipped and fell down the stairs leading to the ground floor of the defendant’s factory. The incident happened at his workplace but he was not … Continue reading

Disclaimer notices and gross negligence

In this judgment, the court held that the two disclaimer notices displayed at the defendant’s premises did not exclude its liability for gross negligence. The plaintiff was a visitor to the defendant’s holiday resort and sustained injury when she fell into a hole when seeking shelter at a time when there was a sudden cloudburst … Continue reading

Time bars in insurance policies and pleadings

In this December 2022 judgment, the court found that the insurer was entitled to rely on the time bar clause contained in the policy because the insured had not alleged in the pleadings that there were good reasons why the insured could not comply and failed to prove such allegation. The time bar clause required … Continue reading

General liability insurance and statutory pollution clean-up obligations

This judgment considered whether the insured was provided with an indemnity under the insurer’s general liability policy for the costs of pollution rehabilitation. Transnet sought to recover money it had expended in the rehabilitation of soil contaminated by aviation fuel escaping from an underground pipeline belonging to it. Transnet had a registered servitude through the … Continue reading

Insurance and meaning of “sudden, unintended and unexpected happening”

In this recent High Court judgment, the insurance policy under consideration contained a pollution exclusion with the proviso that the exclusion did not apply where the pollution was caused by a “sudden, unintended and unexpected happening” during the period of the insurance. It was common cause that the contamination of the third party’s land was … Continue reading

Disclaimer notices and the Consumer Protection Act

In this case, the claimant fell at the entrance of the defendant’s restaurant premises.  The claimant sued alleging negligence on the part of the defendant. One of the issues for determination was whether the defendant was absolved of any liability by virtue of the disclaimer notice. The disclaimer notice read (in capital letters): “All persons … Continue reading

Insurance and reasonable precautions

In this judgment the insured sought an indemnity for its third-party liability arising from the motor vehicle collision in which the insured was involved. The policy required the insured to “use all reasonable care and take all reasonable steps, with the same degree of care from us which can be expected from the reasonable man … Continue reading

Insurance and common interest legal professional privilege

A party may claim legal advice privilege or litigation privilege. Legal advice privilege requires that the information is legal advice, given by a legal advisor in confidence to a client and in respect of which privilege is claimed. Litigation privilege protects communication between co-litigants or their legal advisors and third parties where the communication is … Continue reading

Insurance and what constitutes Property Insured

In this case the insured claimed for damage to rock mass when tunnels for the Gautrain Rapid Rail Systems were constructed. One of the issues in dispute was whether the rock mass surrounding the tunnel void was part of the Property Insured. It was common cause that the damage occurred and that damage was caused … Continue reading

Business interruption insurance: commencement of the Indemnity Period (UK)

In this English court judgment, the parties were in dispute whether the Indemnity Period begins with the commencement of the interruption or interference with the insured business or with the occurrence of the Covered Event. The definition of Indemnity Period in the policy read: “Indemnity Period means the period of time during which interruption or … Continue reading

Rental, covid-19 and impossibility to pay rent

In this judgment the Supreme Court of Appeal decided that the lessor was entitled to evict its tenant as a result of non-payment of rental because the tenant’s pleas that it could not pay rent because of the Covid-19 pandemic could not excuse non-payment from September 2020. The court said that it was trite that … Continue reading

“In connection with”: Insurance policies (UK)

In this October 2022 UK high court judgment, the court, in considering the meaning of the words “in connection with” in an aggregation clause, said that they denote that only a relatively loose link is required.  A wide range of losses might potentially fall to be aggregated as being at least “connected with” an occurrence.  … Continue reading

Covid-19 business interruption claims, savings and government assistance (UK)

In these October 2022 judgments (judgment 1 and judgment 2), the court held that government furlough payments were to be deducted from loss calculations as savings. The insured’s argument that the payments were simply a reimbursement of employment costs was rejected. The courts had regard to the basic rules of a contract of indemnity and … Continue reading

Business interruption claims and Additional Increased Cost of Working (UK)

In this October 2022 judgment, the English high court found that the cover for Additional Increased Cost of Working (AICW) was limited to those costs incurred by the insured that were not “economic” Increased Cost of Working (ICW). The costs are economic if the increased costs and expenses have the effect of diminishing or avoiding … Continue reading