Donald Dinnie

Subscribe to all posts by Donald Dinnie

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

Disclaimer of liability clauses

A contract of carriage had been concluded by way of an exchange of e-mails.  After conclusion of the contract, the customer had signed a credit application with standard trading conditions which contained an exemption from liability for loss or damage. The appeal court found that the credit application with the exemption clauses did not form … Continue reading

Interpreting a settlement agreement

The Supreme Court of Appeal, in Pelham Stephanus Bothma and Others v Tertius Bothma N.O and Another (Case number 748/2019) [2021] ZASCA 46 (15 April 2021), re-affirmed the position regarding the interpretation of legal documents, re-stating the principle that only admissible evidence of context, conservatively applied, may be led in resolving an interpretation dispute. The dispute … Continue reading

Indemnity Insurance involves payment for loss actually suffered by insured (Australian court)

In the judgment, Swiss Re International Se v LCA Marrickville (Pty) Limited, the court discussed the principle that an insured must, under a contract of indemnity, prove the extent or the amount of the loss claimed because the indemnity only concerns actual loss and the deductions to be made from the losses. The court confirmed … Continue reading

Liability of boom operator for personal injury

Some of our readers, like the author, will have experienced a near-miss from a descending boom at a carpark entrance.  In an October 2021 judgment, the plaintiff successfully claimed for personal injuries sustained when the boom at the carpark operated by the defendant descended and struck her. The plaintiff alleged that her injuries were caused … Continue reading

Covid-19 business interruption Australian judgment mostly favours insurers

In this, second, Australian test case for business interruption claims relating to Covid-19 the court said that “[A] policy of insurance is assumed to be an agreement which the parties intend to produce a … businesslike interpretation … …a construction that avoids capricious, unreasonable, inconvenient or unjust consequences, is to be preferred where the words … Continue reading

Litigation funding is not insurance

In the High Court Steinhoff judgment, it was argued that the litigation funding  agreement between the class representative and the funder was a contract of insurance in terms of which the funder provides indemnity insurance to the class representative in consideration for the funder being paid a premium, being a percentage of the ultimate reward. … Continue reading

Litigation funding in South Africa

In South Africa third party litigation funders are increasingly playing an important role in assisting claimants in pursuing litigation both in respect of future legal expenses and costs already incurred.  And in particular for class actions, commercial litigation, consumer disputes, and medical negligence claims. In certifying a class action the court must be told how … Continue reading

Extended business cover confined to physical not financial loss by government Covid-19 action (Aus)

In this August 2021 judgment, the Federal Court of Australia in Star Entertainment Group Limited v Chubb Insurance Australia Limited [2021] FCA 907 had to deal with the interpretation of an insurance policy of the insureds who owned and operated various casinos and associated businesses.  The insureds allege that the government’s directions in connection with … Continue reading
LexBlog