Donald Dinnie

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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

Insurance policies and time bar clauses

The Mpumalanga High Court in this May 2021 judgment upheld the insurer’s reliance on the time bar clause in the policy.  (H Qhibi v MiWay Insurance Ltd (634/2017) [2021] ZAMPMBHC 12) The insured’s claim could not be entertained because it had been brought well after the expiration of the time bar period. It was common … Continue reading

Interpreting the wording of a subscription judgement

In a July 2021 judgment the Supreme Court of Appeal in Capitec Bank Holdings Limited and Another v Coral Lagoon Investments 194 (Pty) Ltd and Others (470/2020) [2021] ZASCA 99 considered the question of how to interpret the wording of a subscription agreement in dispute which governed the basis on which a sale of shares … Continue reading

Business interruption claims and physical damage

There has been a plethora of Covid-19 policy coverage litigation across the United States.  Absent non-damage extensions under business interruption policies the courts have had to consider whether amongst other things government restrictions on businesses including shutdown orders constituted interruption of business caused by loss to property insured.  That included whether those restrictions on businesses … Continue reading

Setting aside a settlement agreement due to common mistake

This blog was co-authored by Tristan Marot, Candidate Attorney. The Labour Appeal Court has recently restated the law on common mistake as it applies to having a settlement agreement set aside in Murray and Roberts (Pty) Ltd v The Commission for Conciliation, Mediation and Arbitration & Others. The matter stemmed from a dispute between the … Continue reading

Repudiating a contract – again

In its June 2021 judgement, the Constitutional Court restated the principles relevant to repudiation of a contract. A party commits the breach of repudiation when through words or conduct that party manifests an unequivocal intention to no longer be bound by the contract or by material obligations forming part of the contract. The intention to … Continue reading

Interpreting contracts and contextual evidence

The Constitutional Court has reaffirmed that that approach to interpretation of contracts requires that from the outset one considers the context and the language together with neither predominating over the other. The approach to interpretation is a unitary exercise.  Interpretation is to be approached holistically, simultaneously considering the text, content and purpose. Context and purpose must … Continue reading

Judges changing their minds

A Google search will produce a long list of quotations affirming the right to change one’s mind. When a judge gives a decision contradicting one of their earlier judgments that becomes more difficult. Judges have a way of finessing a reversal of opinions which they may have expressed in an earlier judgment. Two of the … Continue reading

Indemnity clauses and the Consumer Protection Act

Indemnity clauses and the Consumer Protection Act In a recent Eastern Cape High Court judgment which you can read about here, the claimant fell into an unfenced pool at the game reserve and injured herself.  The court found in the evidence that the claimant’s conduct was the sole cause of her stepping into the pool and … Continue reading

Personal injury claims and swimming pools

Rarely are our trial courts required to deal with delictual claims arising from injuries sustained in the course of the use of or arising from a swimming pool. In this recent judgment the court swiftly disposed of the claimant’s multiple allegations that the defendant game lodge operator was at fault and liable to the claimant … Continue reading

Exclusion of deliberate acts in insurance policies (UK)

A June 2021 UK Supreme Court judgment has highlighted the difficulties insurers may face when relying on a intentional or deliberate acts exclusion. A bouncer at a pub in Aberdeen, Scotland had applied a non-approved neck hold on a rowdy customer resulting in the customer’s death due to mechanical asphyxiation.  In a subsequent criminal trial, … Continue reading