Donald Dinnie

Interpreting insurance contracts: a refresher (part 3 – ambiguity)

By Donald Dinnie on July 16, 2020 Posted in Insurance

Ambiguous insurance contracts may be construed against the insurer. In case of doubt and where there is ambiguity a contract, including an insurance policy, may be construed against the contracting party by whom it was formulated. This is generally known as the contra proferentem rule (see for example, Pereira v Marine and Trade Insurance Co … Continue reading

Interpreting insurance contracts: a refresher (part 2)

By Donald Dinnie on July 13, 2020 Posted in Insurance

An insurance contract is presumed to require that the insured peril must be the proximate cause of the insured’s loss (see Incorporated General Insurance Ltd v A.R. Shooter trading as Shooter’s Fisheries 1987). Causation involves two distinct enquiries namely factual causation and then legal causation. The test for factual causation is generally described as the … Continue reading

Business interruption, infectious disease extensions and causation

By Donald Dinnie on July 10, 2020 Posted in Insurance

Readers will have seen the recent Guardrisk judgment. The applicant, a Cape Town restaurant, sought urgent declaratory relief that the insurer was obliged to indemnify it in terms of the business interruption section of the policy for loss suffered as a result of the closure of the restaurant from 26 March 2020. The infectious disease … Continue reading

Interpreting insurance contracts: a refresher (part 1)

By Donald Dinnie on July 2, 2020 Posted in Insurance

The Supreme Court of Appeal judgment of Centriq Insurance Company Limited and Oosthuizen contains a useful summary of the general principles of interpretation of insurance policies and other contracts: Insurance policies are contracts like any other. Contract provisions must be construed having regard to their language, context and purpose in what is a unitary exercise. … Continue reading

Avoidance and cancellation of non-life policies: The Comic Book Edition

By Donald Dinnie on June 12, 2020 Posted in Insurance

Welcome to Volume 5 of our Big Read Book Series: The Comic Book Edition. You can download your copy here, and identify your favourite insurance director. This volume should be read together with Volume 2 of the Big Read Book Series. Both deal with the avoidance and cancellation of non-life policies. We are pleased that … Continue reading

Defending an insured’s third-party claim and reserving insurer’s rights

By Donald Dinnie on April 28, 2020 Posted in Insurance

From time to time liability insurers may agree to begin defending a claim for an insured while reserving their rights to deny coverage because investigations are not yet complete. Sometimes the policy wording provides expressly for that situation. Or insurers may reserve their rights on an ad hoc basis While there is no South African … Continue reading

Condonation granted where no prejudice proved

By Rethabile Shabalala and Donald Dinnie on April 24, 2020 Posted in General

A plaintiff who suffers damage usually has 3 years within which to sue the defendant. But a claim against the State must be notified within 6 months of an incident occurring. This notification comes before the summons is served. If a claim is not notified within this time period (set out in the Institution of … Continue reading

Deciding between mutually destructive versions of oral agreement

By Hishaam Khan and Donald Dinnie on April 19, 2020 Posted in General

Where there are mutually destructive versions of an oral agreement, a court will side with the version which is more probable considering the circumstances. The credibility of witnesses, including whether their evidence is coherent and consistent, will be taken into account. The applicant in Meintjies v Annandale and another, an owner of an accounting business … Continue reading

You can’t take judicial notice of the behaviour of kudus – need expert evidence

By Rethabile Shabalala and Donald Dinnie on April 9, 2020 Posted in General

Is the behaviour of kudus so clearly established and common knowledge or so easily ascertainable that it does not require evidence to be proved? No. A trial court’s decision to take judicial notice of the behaviour and reaction of kudus was overturned on appeal. A court takes judicial notice of a fact without hearing evidence … Continue reading

COVID-19 and the insurance market

By Donald Dinnie on April 6, 2020 Posted in Insurance

Have a listen to my podcast discussion with the editor of Cover magazine on the potential implications of COVID-19 on the insurance industry in South Africa. We discuss business interruption insurance, liability insurance, event cancellations and travel insurance. Where to start in evaluating insurance exposure for brokers, insurers and reinsurers is covered. Traditional business interruption … Continue reading

Effect of invalid clause within lease agreement

By Hishaam Khan and Donald Dinnie on April 2, 2020 Posted in General

The Supreme Court of Appeal held in March 2020 that an invalid clause in a lease does not necessarily result in the unenforceability of the entire agreement. Two parties entered into an agreement in terms of which the lessor let the premises to the lessee for a period of ten years and three months. The … Continue reading

‘Occurrence’ in insurance policies

By Donald Dinnie on March 24, 2020 Posted in Insurance

The test enunciated by the English court in Kuwait Airways Corporation v Kuwait Insurance Co [1996] 1 Lloyds Rep 664, confirmed in Mann and Another v Lexington Insurance Company [2000] is no different in South African law. “An ‘occurrence’ (which is not materially different from an event or happening, unless perchance the contractual context requires … Continue reading

The Big Read Book series – Volume 4

By Donald Dinnie on March 22, 2020 Posted in Insurance

Norton Rose Fulbright’s collection of South African insurance judgments for 2019 is now available here. 2019 saw a limited number of insurance disputes determined by way of litigation. The various alternative dispute resolution mechanisms used by the insurance industry continue to function well and deliver a tremendous service to insured and insurer alike. Volume 4 of … Continue reading

Insurance claims and COVID-19

By Donald Dinnie on March 18, 2020 Posted in Insurance

If you haven’t already dusted off the business interruption, liability and event cancellation policies you have underwritten, or placed for an insured, and checked for coronavirus coverage, now is the time to do so. Exposure and benefits of both business interruption coverage (covering the insureds losses from an abrupt shutdown) and contingent business interruption coverage … Continue reading

Interpretation of an EAR Policy’s defect exclusion clause

By Donald Dinnie on March 5, 2020 Posted in Insurance

A Greek appeal court was recently called upon to interpret the exclusion under the Contractors’ Erection All Risks Policy which read: “the insurer shall not Indemnify the Insured for … The cost of replacement, repair or rectification of loss due to defective material and/or workmanship. This exclusion shall be limited to the insured items directly … Continue reading

Disclaimers and the Consumer Protection Act

By Donald Dinnie on March 3, 2020 Posted in General

For the first time, a South African court in Van Wyk v UPS dealt with the application of the Consumer Protection Act to disclaimer clauses in a contract. On the facts, the court applied sections 22, 49 and 52 to sever from the agreement the specific clauses on which the defendant sought to escape liability … Continue reading

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