Donald Dinnie

Interpretation of Business Interruption insurance and Covid-19 USA style

By Donald Dinnie on October 15, 2021 Posted in Insurance

In a September 2021 appeal judgment in Ohio USA, the court held that the State’s order to suspend all in-person dining operations at restaurants to slow the spread of the virus resulting in considerable loss of revenue for the insured was not a loss covered under the insured’s business interruption policy “caused by direct physical … Continue reading

Liability of boom operator for personal injury

By Donald Dinnie on October 14, 2021 Posted in Insurance

Some of our readers, like the author, will have experienced a near-miss from a descending boom at a carpark entrance. In an October 2021 judgment, the plaintiff successfully claimed for personal injuries sustained when the boom at the carpark operated by the defendant descended and struck her. The plaintiff alleged that her injuries were caused … Continue reading

Covid-19 business interruption Australian judgment mostly favours insurers

By Donald Dinnie on October 13, 2021 Posted in Insurance

In this, second, Australian test case for business interruption claims relating to Covid-19 the court said that “[A] policy of insurance is assumed to be an agreement which the parties intend to produce a … businesslike interpretation … …a construction that avoids capricious, unreasonable, inconvenient or unjust consequences, is to be preferred where the words … Continue reading

Cancellation of a contract between private parties is not judicially reviewable

By Donald Dinnie on October 13, 2021 Posted in General

In this judgment the Supreme Court of Appeal confirmed as trite that a decision by a contracting party to cancel a contract concluded between two private parties cannot form the subject of review by the courts. The power of the courts to review the lawfulness, reasonableness and procedural fairness of decisions or actions applies only to … Continue reading

Prescription of business interruption insurance claims (UK)

By Donald Dinnie on October 1, 2021 Posted in Insurance

Prescription arose in a UK case dealing with a business interruption claim arising from damage to the insured’s gym facilities when the premises were broken into and vandalised. Damage was caused to the toilets and wash hand basin and there was flooding of the premises. Exercise bikes, furniture, mirrors and other equipment were damaged and … Continue reading

Litigation funding is not insurance

By Donald Dinnie on September 20, 2021 Posted in Insurance

In the High Court Steinhoff judgment, it was argued that the litigation funding agreement between the class representative and the funder was a contract of insurance in terms of which the funder provides indemnity insurance to the class representative in consideration for the funder being paid a premium, being a percentage of the ultimate reward. … Continue reading

Litigation funding in South Africa

By Donald Dinnie on September 17, 2021 Posted in General

In South Africa third party litigation funders are increasingly playing an important role in assisting claimants in pursuing litigation both in respect of future legal expenses and costs already incurred. And in particular for class actions, commercial litigation, consumer disputes, and medical negligence claims. In certifying a class action the court must be told how … Continue reading

Extended business cover confined to physical not financial loss by government Covid-19 action (Aus)

By Donald Dinnie on August 19, 2021 Posted in Insurance

In this August 2021 judgment, the Federal Court of Australia in Star Entertainment Group Limited v Chubb Insurance Australia Limited [2021] FCA 907 had to deal with the interpretation of an insurance policy of the insureds who owned and operated various casinos and associated businesses. The insureds allege that the government’s directions in connection with … Continue reading

Insurance policies and time bar clauses

By Donald Dinnie on August 6, 2021 Posted in Insurance

The Mpumalanga High Court in this May 2021 judgment upheld the insurer’s reliance on the time bar clause in the policy. (H Qhibi v MiWay Insurance Ltd (634/2017) [2021] ZAMPMBHC 12) The insured’s claim could not be entertained because it had been brought well after the expiration of the time bar period. It was common … Continue reading

How does good faith feature in our law of contract?

By Donald Dinnie on July 28, 2021 Posted in Interpretation

The July 2021 Supreme Court of Appeal judgment in Capitec Bank Holdings Limited v Coral Lagoon Investments 194 (Pty) Ltd and Others (10530/2020) [2021] ZAWCHC 65, deferred to the Constitutional Court in Beadica 231 CC and Others v Trustees, Oregon Trust and Others [2020] ZACC 13; 2020 (5) SA 247 (CC) which authoratively dealt with … Continue reading

Interpreting the wording of a subscription judgement

By Donald Dinnie on July 27, 2021 Posted in Insurance

In a July 2021 judgment the Supreme Court of Appeal in Capitec Bank Holdings Limited and Another v Coral Lagoon Investments 194 (Pty) Ltd and Others (470/2020) [2021] ZASCA 99 considered the question of how to interpret the wording of a subscription agreement in dispute which governed the basis on which a sale of shares … Continue reading

Business interruption claims and physical damage

By Donald Dinnie on July 22, 2021 Posted in General, Uncategorized

There has been a plethora of Covid-19 policy coverage litigation across the United States. Absent non-damage extensions under business interruption policies the courts have had to consider whether amongst other things government restrictions on businesses including shutdown orders constituted interruption of business caused by loss to property insured. That included whether those restrictions on businesses … Continue reading

Jurisdiction over an insurance dispute where both parties are foreigners

By Donald Dinnie on July 21, 2021 Posted in Insurance

In this judgment both the insured and insurer were foreign peregrini, that is neither was resident nor domiciled in the Republic of South Africa. The insured was a resident of the Virgin British Islands and the insurer, Russia. The policy provided that it was governed by the laws of the insured’s country of domicile, that … Continue reading

Setting aside a settlement agreement due to common mistake

By Donald Dinnie on July 14, 2021 Posted in General

This blog was co-authored by Tristan Marot, Candidate Attorney. The Labour Appeal Court has recently restated the law on common mistake as it applies to having a settlement agreement set aside in Murray and Roberts (Pty) Ltd v The Commission for Conciliation, Mediation and Arbitration & Others. The matter stemmed from a dispute between the … Continue reading

Repudiating a contract – again

By Donald Dinnie on July 13, 2021 Posted in General

In its June 2021 judgement, the Constitutional Court restated the principles relevant to repudiation of a contract. A party commits the breach of repudiation when through words or conduct that party manifests an unequivocal intention to no longer be bound by the contract or by material obligations forming part of the contract. The intention to … Continue reading

Interpreting contracts and contextual evidence

By Donald Dinnie on July 6, 2021 Posted in General

The Constitutional Court has reaffirmed that that approach to interpretation of contracts requires that from the outset one considers the context and the language together with neither predominating over the other. The approach to interpretation is a unitary exercise. Interpretation is to be approached holistically, simultaneously considering the text, content and purpose. Context and purpose must … Continue reading

Judges changing their minds

By Donald Dinnie on June 30, 2021 Posted in General

A Google search will produce a long list of quotations affirming the right to change one’s mind. When a judge gives a decision contradicting one of their earlier judgments that becomes more difficult. Judges have a way of finessing a reversal of opinions which they may have expressed in an earlier judgment. Two of the … Continue reading

Indemnity clauses and the Consumer Protection Act

By Donald Dinnie on June 22, 2021 Posted in Insurance

Indemnity clauses and the Consumer Protection Act In a recent Eastern Cape High Court judgment which you can read about here, the claimant fell into an unfenced pool at the game reserve and injured herself. The court found in the evidence that the claimant’s conduct was the sole cause of her stepping into the pool and … Continue reading

Personal injury claims and swimming pools

By Donald Dinnie on June 22, 2021 Posted in Insurance

Rarely are our trial courts required to deal with delictual claims arising from injuries sustained in the course of the use of or arising from a swimming pool. In this recent judgment the court swiftly disposed of the claimant’s multiple allegations that the defendant game lodge operator was at fault and liable to the claimant … Continue reading

Exclusion of deliberate acts in insurance policies (UK)

By Donald Dinnie on June 18, 2021 Posted in Insurance

A June 2021 UK Supreme Court judgment has highlighted the difficulties insurers may face when relying on a intentional or deliberate acts exclusion. A bouncer at a pub in Aberdeen, Scotland had applied a non-approved neck hold on a rowdy customer resulting in the customer’s death due to mechanical asphyxiation. In a subsequent criminal trial, … Continue reading

FAIS Ombud must determine jurisdiction before determining complaints

By Donald Dinnie on June 18, 2021 Posted in Finance

In April 2021, the Supreme Court of Appeal dismissed the review of determinations made by the FAIS Ombud established in terms of the Financial Advisory and Intermediary Services Act of 2002 (FAIS Act). The SCA was called upon to decide whether the Ombud had committed a reviewable error in determining complaints lodged by the respondents. … Continue reading

Security companies, vicarious liability and joint wrongdoers

By Donald Dinnie on June 17, 2021 Posted in Insurance

The May 2021 Supreme Court of Appeal judgment is a useful reminder that liability in a delictual claim based on vicarious liability is a form of liability which is imposed upon one person for the wrongful and unlawful conduct of another. It is, in essence, a strict liability. The liability arises through no fault of … Continue reading

Days of grace do not apply to a repudiated life insurance policy

By Donald Dinnie on June 14, 2021 Posted in Insurance

In a June 2021 judgment, the Supreme Court of Appeal held that the 30 day grace period for an unpaid premium in a life policy does not apply where the cancellation of the policy is a result of a repudiation by the insured herself. The grace period only applies where the non-payment of the premium … Continue reading

Covid-19 insurance claims and physical loss (US)

By Donald Dinnie on May 18, 2021 Posted in Insurance

Another American court in G & A Family Enterprises, LLC d/b/a Smokin’ Pig BBQ & Others v American Family Insurance Company 1: 20-CV-03912-JPB has held that State-imposed Covid-19 restrictions do not qualify as a “direct physical loss” under the insurance policy held by the insureds. The court held that while the phrase “direct physical loss” … Continue reading