Donald Dinnie

Rule 41A and Bad Faith Mediation – Part 2

By Donald Dinnie on January 17, 2022 Posted in Insurance

Superimposed over ordinary voluntary mediation, where a party can withdraw at any stage without potentially attracting any adverse consequences, is the judicially sanctioned High Court Rule 41A procedure obliging the parties to consider a non-adversarial resolution to a dispute which is already before the courts. The provisions of rule 41A are consistent with the understood … Continue reading

Rule 41A and Bad Faith Mediation – Part 1

By Donald Dinnie on January 14, 2022 Posted in Insurance

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)

By Donald Dinnie on January 13, 2022 Posted in Healthcare, Insurance

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)

By Donald Dinnie on January 12, 2022 Posted in Healthcare, Insurance

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)

By Donald Dinnie on January 11, 2022 Posted in Healthcare, Interpretation

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

Covid-19 business interruption claims and virus exclusions (USA)

By Donald Dinnie on January 7, 2022 Posted in Insurance

While this Ohio Appellate Court judgment found that the insured did not suffer direct physical loss or damage so as to warrant coverage, it also considered the application of the virus exclusion in the policy The exclusion reads: “We will not pay for loss or damage caused directly or indirectly by any of the following. … Continue reading

Ambiguity and bad grammar

By Donald Dinnie on January 5, 2022 Posted in Interpretation

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

The proceeds of an insurance life policy benefitting an insolvent belong to their trustee

By Donald Dinnie on December 10, 2021 Posted in Insurance

An unrehabilitated insolvent, who is a nominated beneficiary in terms of a life insurance policy, is not entitled to the proceeds of the policy to the exclusion of the trustees of their insolvent estate. The claimant was married in community of property to the deceased, his wife. A contract of insurance was concluded with the … Continue reading

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

By Donald Dinnie on December 9, 2021 Posted in Insurance

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

By Donald Dinnie on December 8, 2021 Posted in Insurance

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

By Donald Dinnie on December 7, 2021 Posted in Insurance

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

By Donald Dinnie on December 6, 2021 Posted in Insurance

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)

By Donald Dinnie on December 6, 2021 Posted in Healthcare

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

By Donald Dinnie on December 1, 2021 Posted in Insurance

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

By Donald Dinnie on December 1, 2021 Posted in General

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)

By Donald Dinnie on November 30, 2021 Posted in Insurance

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)

By Donald Dinnie on November 19, 2021 Posted in Insurance

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

By Donald Dinnie on November 18, 2021 Posted in Insurance

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

Professional Indemnity Insurance and aggregation of claims (UK)

By Donald Dinnie on November 12, 2021 Posted in Insurance

This UK court of appeal judgment Lord Bishop of Leeds v Dixon Coles & Gill [2021] EWCA Civ 1211 considered whether claims arising from one series of related acts or omissions could be aggregated. The insured, an attorney’s practice, held a professional indemnity policy with a limit of indemnity for one claim of £2 million. The … Continue reading

FAIS debarment and what constitutes honesty and integrity

By Donald Dinnie on November 11, 2021 Posted in Finance

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

By Donald Dinnie on November 10, 2021 Posted in Insurance

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)

By Donald Dinnie on November 9, 2021 Posted in Insurance

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

By Donald Dinnie on November 9, 2021 Posted in Insurance

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

By Donald Dinnie on November 3, 2021 Posted in Insurance

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