Donald Dinnie

Liability for independent contractors and the legal fiction of non-delegability

By Donald Dinnie on February 28, 2020 Posted in General

The Western Cape High Court in the December 2019 decision of Holtzhauzen v Cenprop Real Estate and Naheel Investments confirmed the general proposition that a principal is not liable for the negligent conduct of its independent contractor. This was a slip and trip claim where the shopping mall owner had delegated cleaning services to a … Continue reading

Causation, the ‘but-for’ test and flexibility

By Donald Dinnie on February 24, 2020 Posted in Insurance

A defendant is not liable unless their wrongful conduct in fact causes the claimant’s harm. The defendant is also not liable merely because their conduct in fact caused the claimant’s harm. There must be both factual and legal causation. The long accepted test of factual causation is the ‘but-for’ test. One asks whether the claimant’s … Continue reading

Gross negligence carve-outs

By Donald Dinnie on February 19, 2020 Posted in General

Often ‘gross negligence’ is used as a carve-out from a no-liability clause. The Consumer Protection Act expressly provides that a supplier cannot exclude liability for gross negligence. Negligence is the deviation from the standard of care expected of a reasonable person in the particular circumstances. Clearly more than mere negligence is involved when a person … Continue reading

Indemnity and disclaimer clauses relating to school children: 12 things to know

By Donald Dinnie on February 10, 2020 Posted in Insurance

If you, as a parent or guardian of a minor child, sign a disclaimer clause, you might lose the right to sue the school for damages you suffer (in your own right) relating to your child’s death or injury, which was negligently and wrongfully caused by the school. A parent or guardian can never lawfully … Continue reading

Euthanasia in South Africa

By Donald Dinnie on February 4, 2020 Posted in General

The debate around euthanasia and its legal implications has stirred again due to the 2019 case of Professor Sean Davison, charged with three counts of murder in circumstances where the individuals had asked him for assistance in their deaths. Understandably, faced with a long prison sentence if convicted of murder, Professor Davison concluded a court-approved … Continue reading

Insurers, personal injury damages and medical expenses

By Donald Dinnie on February 4, 2020 Posted in Insurance

Insurers dealing with and defending personal injury claims under a liability policy should bear in mind the general principles regarding claims for damages in those cases. The plaintiff who claims damages for the cost of future medical expenses bears the onus of proving the damages claimed and that the damages claim is reasonable. Generally it … Continue reading

Reviewing the law on ‘reasonable precautions’

By Donald Dinnie on January 29, 2020 Posted in Insurance

The reasonable precautions clause which commonly appears in policies requires the insured to take reasonable steps to safeguard the insured property or prevent accidents and minimise loss, damage or liability (or variations thereof). The clause most likely requires proof of recklessness on the part of the insured but interestingly, there is no authoritative judgment by … Continue reading

Responsibility of resort for sexual assault of guest

By Donald Dinnie on January 26, 2020 Posted in General

The terrible and harrowing tale of an 18 year old mildly intellectually impaired woman can be read in the judgments of the high court (Bridgman NO v Witzenberg Municipality and others) and the appeal judgment of Witzenberg Municipality v Bridgman NO and others of 3 December 2019. Both the lower and appeal court had no … Continue reading

Legal proceedings against organs of state and condonation applications

By Donald Dinnie on January 22, 2020 Posted in Insurance

From time to time insurers are required to defend proceedings against their insureds who are organs of state or to institute subrogated recovery actions against such bodies. The Institution of Legal Proceedings Against Certain Organs of State Act 2002 requires the claimant who wishes to proceed against an organ of state to give notice to … Continue reading

That sinking feeling – proximate cause and insurance

By Donald Dinnie on January 20, 2020 Posted in Insurance

A German appeal court determined, in a marine claim, that the proximate cause of a vessel’s grounding and ultimate sinking after its main engine cut out was bad weather rather than an engine problem. Accordingly the loss was held to be proximately caused by peril of the sea, covered under the relevant policy. The events … Continue reading

Insurance, consensus and non-existent property

By Donald Dinnie on January 14, 2020 Posted in Insurance

The basis for contractual insurance liability is actual consensus supported by the insureds’ and the insurers’ serious intention to be legally bound to what they have agreed to. There is no consensus if there is a material mistake relating to the identity of the parties to the insurance contract, or the object of the risk, … Continue reading

Offers of settlement and time-bars in insurance policies

By Donald Dinnie on January 8, 2020 Posted in Insurance

In South Africa, for example, under the Policyholder Protection Rules or the Short-term Ombud’s Rules the running of statutory prescription and time-bar limitation periods provided for in an insurance policy may be suspended while a dispute is resolved. German law also provides for some circumstances in which the limitation period in an insurance coverage dispute … Continue reading

When does a claim under a liability policy prescribe?

By Donald Dinnie on December 11, 2019 Posted in Insurance

A claim for indemnification under a liability insurance contract only arises when liability to a third party for a certain amount has been established. For purposes of prescription, the debt becomes due when the insured is under legal liability to pay a fixed and determined sum of money. Until then a ‘claim’ for indemnification under … Continue reading

Proroguing the United Kingdom Parliament – The Supreme Court speaks

By Donald Dinnie on November 24, 2019 Posted in General

The case of R (Miller) v The Prime Minister and Cherry v Advocate General for Scotland dealt with whether the advice given by the UK Prime Minister to Her Majesty the Queen to prorogue Parliament (that is, discontinue its session) for a number of days between September and October 2019 was lawful. The Supreme Court … Continue reading

Medical malpractice: A USA birth injury comparison

By Donald Dinnie on November 19, 2019 Posted in Insurance

South African healthcare practitioners and insurers may take some comfort (on the basis that the grass is not greener) from the jury verdict of an Illinois, US Court in a medical malpractice claim against the West Suburban Medical Center and others. The jury awarded a record US$100.6 million damages against the hospital in respect of brain … Continue reading

Loss adjusters’ reports may not be privileged

By Donald Dinnie on November 15, 2019 Posted in Insurance

Loss Adjusters’ reports are only privileged where the reports are prepared in contemplation of litigation and for the purpose of seeking legal advice. But it is not every insurance claim where litigation is likely or reasonably anticipated. The sole or dominant purpose of the creation of the report need not be for the purposes of … Continue reading

Mediation in the High Court

By Donald Dinnie on November 12, 2019 Posted in General

Successful mediation of any dispute is largely dependent on the skills and expertise of the mediator and the willingness and good faith of the parties to the mediation to engage in that process. So it is to be welcomed that the proposed new High Court Rule 41A doesn’t make mediation compulsory but is rather intended … Continue reading

The Big Read Book Series

By Donald Dinnie and Patrick Bracher (ZA) on November 3, 2019 Posted in Insurance

Norton Rose Fulbright’s insurance practice is excited to announce the launch of its Big Read Book Series with the publications of Volume 1 and 2 in the series. The series is part of the insurance practice’s contribution to resourcing the insurance industry. Volume 1 is a collection of South African insurance judgments of 2018. Volume … Continue reading

Expert evidence

By Donald Dinnie on September 18, 2019 Posted in General

Parties to any dispute who rely exclusively on opinions of experts without establishing the factual basis for those opinions do so at their peril. The opinion of an expert must be based on facts that are established by the evidence. The court then assesses the opinions of experts on the basis of ‘whether and to … Continue reading

Presenting your evidence in the small claims court

By Donald Dinnie on September 8, 2019 Posted in General

The small claims court resolves matters speedily, inexpensively and informally. Whether you are the claimant (plaintiff) or the party opposing the claim (the defendant), you must conduct your own case in court without legal representation. Here are some tips on dealing with your small claims court case. Proceedings are inquisitorial so the commissioner plays an … Continue reading

The increasing need for risk management advice by lawyers

By Donald Dinnie on October 24, 2017 Posted in General

The risk landscape has led business people, and their legal and compliance teams, to bemoan the business world in which we live. Unsurprisingly, regulatory compliance is the top risk for most industries. Navigating the risk landscape is now a significant focus of businesses and while traditionally accountant-firm driven, risk advisory services offered by law firms … Continue reading

Redefining legal practice

By Donald Dinnie on September 7, 2017 Posted in General

Technological and business model disruption has spurred Norton Rose Fulbright’s focus in seeking new inventive solutions for clients. We are working with new and emerging technology to drive efficient legal services and to reduce costs. We are already providing cutting edge legal-tech solutions, and this will grow. For example, our ‘POPI Counsel’ is in essence … Continue reading

Law Commission report on medico-legal claims for comment by 30 September 2017

By Donald Dinnie and Sandra Sithole (ZA) on July 31, 2017 Posted in General

The South African Law Reform Commission has issued a lengthy paper on the investigations into medico-legal claims with proposals for the reform of the law in connection with those claims. The paper discusses the current situation and the legal principles underlying claims for damages for medical negligence, state liability, the basis for payment of compensation … Continue reading

Specialty lines insurance in Africa

By Donald Dinnie and Raynold Tlhavani (ZA) on April 23, 2016 Posted in Insurance

Africa’s largely untapped specialty lines insurance market has significant opportunities for insurers willing to enter the region. As the market develops, more difficult and unusual risks will be written. Regulations which vary by country must be considered. For example, placing insurance with a locally licensed insurer is often a requirement or a percentage of the … Continue reading