Donald Dinnie

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Rule 41A and Bad Faith Mediation –  Part 1

In this Gauteng High Court judgement, the court provides some useful comments on the application of High Court Rule 41A requiring litigants to attempt to mediate their dispute, and the question of bad faith mediation. This is helpful, considering the embryotic stage of the rule and the paucity of case law or literature on the … Continue reading

Rejection of ‘the matter speaks for itself’ doctrine and the Onus of Proof in Medical Negligence cases (Part 3)

This blog was co-authored by: Caitlin Gardiner, Candidate Attorney In this judgement in the Supreme Court of Appeal the claimant submitted that the hospital breached its statutory duty in that it failed to ensure the proper safe-keeping of the hospital records of the claimant and her cerebral palsied child. The court considered the application of res … Continue reading

Evaluating Expert Medical Evidence (Part 2)

This blog was co-authored by: Caitlin Gardiner, Candidate Attorney In this claim, alleging that the hospital staff’s negligence during the claimant’s labour resulted in her child’s cerebral palsy, the Supreme Court of Appeal addressed the issue of how to assess expert evidence in a field where medical certainty is virtually impossible. In such circumstances a … Continue reading

Missing Hospital Records and Adverse Inference (Part 1)

This blog was co-authored by: Caitlin Gardiner, Candidate Attorney In this case, the Claimant sued for damages, alleging that the hospital staff’s negligence during her labour resulted in her child’s cerebral palsy. The Supreme Court of Appeal found that no adverse inference should be drawn because the hospital records are missing. Nor could any negative … Continue reading

Ambiguity and bad grammar

Bad grammar does not necessarily render a contract ambiguous. That was the sensible conclusion of this United States judgment. Hall sued her former employer, Rag-O-Rama when it fired her less than a year after promoting her to an area-manager position.  A poorly drafted sentence in the employment contract recorded: “Hall is reminded of the non-competition clause … Continue reading

Covid-19 business interruption insurance claims and closure orders by Civil Authorities (USA) Part 4

This Californian Appeal Court judgment previously discussed here (Part 1, Part 2 and Part 3)) was also required to consider the insured’s argument that the Civil Authority Coverage Clause applies because the government orders were made in direct response to the continued and increasing presence of the Coronavirus, a dangerous physical condition, on and around … Continue reading

Covid-19 business interruption insurance claims and absence of a virus exclusion (USA) Part 3

In this Californian Court of Appeal judgment previously discussed here (Part 1 and Part 2) the insured also argued, to support its contention that it incurred a suspension of operations caused by a direct physical loss of or damage to property, that no express exclusion for loss or damage resulting “from any virus” was included … Continue reading

Covid-19 business interruption insurance claims and suspension due to direct physical loss (USA) Part 2

The Californian Court of Appeal in this judgment and discussed here also considered whether the insured’s business was suspended due to direct physical loss of its property. The policy required suspension of operations caused by direct physical loss of property. The insured argued that regardless of the physical presence of the Covid-19 virus, it had … Continue reading

Covid-19 business interruption insurance claims and direct physical damage (USA) Part 1

In this Court of Appeal Judgement in the State of California, the Californian appeal court dealt authoratively with the question of whether a commercial property insurance policy provides coverage for a business’s lost income due to the Covid-19 pandemic. The court pointed out that while at that time no California appellate court had addressed the issue … Continue reading

Kholina v Health Professionals Councils of South Africa and Others (8523/21) [2021] ZAGPPHC 404 (18 June 2021)

This blog was co-authored by: Rethabile Shabalala, Associate Designate Ksenia Kholina brought a successful application here, to oblige the Health Professions Council of South Africa (HPCSA) to set a date for an examination to enable her to practise as a dentist.  Ksenia was born in Russia but, with her family, relocated to South Africa in … Continue reading

Covid-19 business interruption claims and rental remission

This recent Cape High court judgment contains some useful guidance for insurers in adjusting covid-19 business interruption claims involving recovery or remission of rental. The court confirmed that as a matter of general principle: a lessee is entitled to claim rental remission where there is a deprivation of or lack of beneficial use of occupation … Continue reading

Hospital records as evidence and drawing inferences

This blog was co-authored by: Bwanika Lwanga, Candidate Attorney Recently the Supreme Court of Appeal in Rautini v Passenger Rail Agency of South Africa (Case no. 853/2020) [2021] ZASCA 158 (8 November 2021) reaffirmed the general rule regarding the drawing of inferences. A court may only draw inferences that are consistent with all the proven facts. … Continue reading

Avoidance of insurance policies – moral hazard and inducement (UK)

In this judgment, Berkshire Assets (West London) Limited v AXA Insurance Plc [2021] EWHC 2689 (Comm) the insured sought to recover an indemnity pursuant to a Contractors’ All Risks and Business Interruption policy. The insured denied liability and avoided the policy alleging that the insured failed to disclose the admitted fact that one of its directors … Continue reading

Avoidance of insurance policy for non-disclosure and misrepresentation (UK)

In this judgement, the English high court decided that the insurer was entitled to avoid an employer’s liability insurance policy on grounds of material non-disclosure and misrepresentation.  The insurers had shown that the facts misrepresented or not disclosed would have influenced the mind of a reasonably prudent underwriter in exercising their underwriting judgment as to … Continue reading

Liability insurance and joint retainer privilege

This judgement considered the interesting question of legal professional privilege, the rights of successors in title, and joint retainer privilege. The insured and the insurer jointly engaged attorneys to act on their behalf in relation to various claims relating to cosmetic surgery and the use of silicone breast implants.  The attorneys were appointed to act … Continue reading

FAIS debarment and what constitutes honesty and integrity

In order for a representative to be debarred, there must be non-compliance by the representative or the key individual of the financial services provider with, amongst other things, the “fit and proper” requirements of the FAIS Act. The fit and proper requirements are measured against a number of categories including those of personal character qualities … Continue reading

Wrongfulness and liability for injury by animals

This blog was co-authored by: Bwanika Lwanga, Candidate Attorney In this January 2021 judgment the high court in Minister of Justice and Correctional Services v Kitcher and Another (874/2019) [2021] ZANCHC 12 considered the question of whether the minister could be held liable for harm from an animal attack on premises within their control. Mr … Continue reading

Householders liability insurance exclusion for anyone who usually lives at the insured address (Australia)

This judgment Re Murray (deceased) Crummer v AAI Limited ABN 2020 QSC 155 dealt with the meaning of a householder’s liability policy exclusion for liability for death or injury of anyone who usually lives at the insured address. The court said that the phrase “anyone who usually lives at the insured address” appeared to be a … Continue reading

When constitutional damages are claimable

This November 2021 Constitutional Court judgment contains a useful review and analysis of when it is appropriate to award constitutional damages. In terms of section 38 of the Constitution, a court may award damages for a violation of rights in the Bill of Rights. Section 38 refers to the granting of “appropriate relief”. The concept of … Continue reading

Business interruption non-damage extension insurance indemnity periods

In this judgment,  the court held that the indemnity period applicable to the relevant non-damage business interruption extension of the policy was eighteen months and not three months as contended for by the insurer.  The judgment is fact specific and turns on the policy wording and structure. It establishes no new principles.  The court applied … Continue reading

US jury rejects restaurant Covid-19 insurance claim

Readers who have been following the Covid-19 business interruption litigation in the USA will know that the courts have largely, at summary judgment stage, dismissed claims for coverage alleging that the virus caused physical damage to insured premises. That question has been now been pronounced upon by a jury trial. A Missouri Federal jury considered … Continue reading