Donald Dinnie

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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

Insurance, rejection, Time Bar clauses and rejection of insurance claims (Botswana)

In Majwe Mining Joint Venture (Pty) Ltd v Old Mutual Short-Term Insurance (Botswana) Limited, the Botswana appeal court was required to consider the date from which the time bar period provided for in the General Conditions in an insurance policy started running following the insurer’s disclaiming of liability for an indemnity. In a communication of … Continue reading

Property Insurance: calculation of total loss

In the High Court case of Blackspear Holdings (Pty) Ltd v SASRIA the debate revolved around the proper interpretation of the total loss clause: “‘2.        Total loss In the event that the insured property is totally lost or destroyed the amount payable shall be the cost of removing the damaged property (limited to the … Continue reading

Slips, trips and independent contractors

This blog was co-authored by: Carly Lakin, Candidate Attorney In this judgment the court considered whether the principal was liable for the negligence of an independent contractor. An attorney at the Gqeberha Magistrates’ Court slipped on a wet floor and sustained injuries. He instituted action against the Minister of Public Works & Infrastructure as the … Continue reading

Insurance: occurrence and aggregation clauses

Occurrence clauses are commonly used to effect the application of deductibles on limits by aggregating claims. They may operate in favour of the insured as to the amount of the deductible because it avoids deductibles being separately applied for each separate claim.  And may operate in favour of the insurer in regard to limits because … Continue reading

More about peremption

The doctrine of peremption requires a party which has lost a case to make up its mind. It cannot equivocate and acquiesce in a judgment or arbitration award and later seek to appeal. In South African law, if the conduct of an unsuccessful litigant is such as to point indubitably and necessarily to the conclusion … Continue reading

A Bit More about Follow-the-Lead Clauses

In this judgment, the South African appellate court, in referencing co-insurance clauses (which was in content a follow-the-lead clause), said: “In order to determine the proper meaning of the co-insurance clause, it is necessary to have regard to its purpose. In my view, the object of this clause was to protect the insured so that it … Continue reading

A Bit about Follow-the-Lead clauses

In the San Evans Maritime case, the English court described follow-the-lead clauses as follows: “11. Follow clauses come in different forms. Some oblige the following underwriter to follow the lead underwriter in relation to a large number of matters including alterations to the terms of the policy, surveys and settlement of claims (as in Roar Marine … Continue reading

Insurtech, confidential information and passing off

In this mammoth English judgment the court dealt with a dispute between two motor insurance providers and claims of misuse of confidential information used to jointly develop an insurance rating model for the broker’s new start-up insurance business. The claimant insurer sought both an interdict and damages against its former broker and the insurer to … Continue reading

The Consumer Protection Act and exhaustion of remedies

This judgement considered whether section 69 of the Consumer Protection Act (CPA), which provides that a person may not seek to enforce any right in terms of the CPA, or in terms of a transaction or agreement or otherwise to resolve a dispute by approaching the court with jurisdiction of the matter unless  “all other … Continue reading

Vicarious liability when an employee commits an intentional wrong

In this judgment the court grappled with the difficult question of imposing vicarious liability on an employer for an employee’s deliberate wrongdoing. The court acknowledged that such situations create special difficulties both in relation to the conceptual basis for liability and public policy justifications underlying the liability. This was a clear case of a deliberately … Continue reading

Directors and Officers Insurance and Material Non-Disclosure & Misrepresentation (Australia)

In this judgment the court considered the insured’s duty of disclosure and the insurers’ ability to avoid the policy under the relevant Australian legislation. The question turned on what was called the Iraq File Note written in November 2010.The insurers contended that the contents should have been disclosed before renewal of the policy in 2011. … Continue reading