This blog was co-authored by: Maano Manavhela, Candidate Attorney In this case, the claimant sustained severe bodily injuries when he stepped onto a powdery substance with his left foot and slipped and fell down the stairs leading to the ground floor of the defendant’s factory. The incident happened at his workplace but he was not … Continue reading
The initiative to establish the Small Claims Court began in the early 1980’s. The result of the Hoexter Commission of Enquiry was the passing of the Small Claims Court Act in 1984. The Small Claims Courts are designed to settle small civil claims (currently the monetary claim limit is R20 000.00) in an informal and … Continue reading
In this judgment, the court held that the two disclaimer notices displayed at the defendant’s premises did not exclude its liability for gross negligence. The plaintiff was a visitor to the defendant’s holiday resort and sustained injury when she fell into a hole when seeking shelter at a time when there was a sudden cloudburst … Continue reading
In this December 2022 judgment, the court found that the insurer was entitled to rely on the time bar clause contained in the policy because the insured had not alleged in the pleadings that there were good reasons why the insured could not comply and failed to prove such allegation. The time bar clause required … Continue reading
This judgment considered whether the insured was provided with an indemnity under the insurer’s general liability policy for the costs of pollution rehabilitation. Transnet sought to recover money it had expended in the rehabilitation of soil contaminated by aviation fuel escaping from an underground pipeline belonging to it. Transnet had a registered servitude through the … Continue reading
In this recent High Court judgment, the insurance policy under consideration contained a pollution exclusion with the proviso that the exclusion did not apply where the pollution was caused by a “sudden, unintended and unexpected happening” during the period of the insurance. It was common cause that the contamination of the third party’s land was … Continue reading
Norton Rose Fulbright’s review of the 2021 South African Insurance Judgments is now available HERE. This is Volume 9 of the Big Read Book Series. It is a bumper edition covering 32 insurance judgments. 2021 saw an increase in insurance cases heard by the courts, possibly a catch up from the backlog caused by the … Continue reading
In this case, the claimant fell at the entrance of the defendant’s restaurant premises. The claimant sued alleging negligence on the part of the defendant. One of the issues for determination was whether the defendant was absolved of any liability by virtue of the disclaimer notice. The disclaimer notice read (in capital letters): “All persons … Continue reading
In this judgment the insured sought an indemnity for its third-party liability arising from the motor vehicle collision in which the insured was involved. The policy required the insured to “use all reasonable care and take all reasonable steps, with the same degree of care from us which can be expected from the reasonable man … Continue reading
A party may claim legal advice privilege or litigation privilege. Legal advice privilege requires that the information is legal advice, given by a legal advisor in confidence to a client and in respect of which privilege is claimed. Litigation privilege protects communication between co-litigants or their legal advisors and third parties where the communication is … Continue reading
In this case the insured claimed for damage to rock mass when tunnels for the Gautrain Rapid Rail Systems were constructed. One of the issues in dispute was whether the rock mass surrounding the tunnel void was part of the Property Insured. It was common cause that the damage occurred and that damage was caused … Continue reading
In this English court judgment, the parties were in dispute whether the Indemnity Period begins with the commencement of the interruption or interference with the insured business or with the occurrence of the Covered Event. The definition of Indemnity Period in the policy read: “Indemnity Period means the period of time during which interruption or … Continue reading
In this judgment the Supreme Court of Appeal decided that the lessor was entitled to evict its tenant as a result of non-payment of rental because the tenant’s pleas that it could not pay rent because of the Covid-19 pandemic could not excuse non-payment from September 2020. The court said that it was trite that … Continue reading
In this October 2022 UK high court judgment, the court, in considering the meaning of the words “in connection with” in an aggregation clause, said that they denote that only a relatively loose link is required. A wide range of losses might potentially fall to be aggregated as being at least “connected with” an occurrence. … Continue reading
In these October 2022 judgments (judgment 1 and judgment 2), the court held that government furlough payments were to be deducted from loss calculations as savings. The insured’s argument that the payments were simply a reimbursement of employment costs was rejected. The courts had regard to the basic rules of a contract of indemnity and … Continue reading
In this October 2022 judgment, the English high court found that the cover for Additional Increased Cost of Working (AICW) was limited to those costs incurred by the insured that were not “economic” Increased Cost of Working (ICW). The costs are economic if the increased costs and expenses have the effect of diminishing or avoiding … Continue reading
Norton Rose Fulbright’s collection of South African insurance judgments for 2020 is now available here. Volume 7 of The Big Read Book series complements the first six volumes of the Big Read Book already published and which can be read here.… Continue reading
In Majwe Mining Joint Venture (Pty) Ltd v Old Mutual Short-Term Insurance (Botswana) Limited, the Botswana appeal court was required to consider the date from which the time bar period provided for in the General Conditions in an insurance policy started running following the insurer’s disclaiming of liability for an indemnity. In a communication of … Continue reading
In the High Court case of Blackspear Holdings (Pty) Ltd v SASRIA the debate revolved around the proper interpretation of the total loss clause: “‘2. Total loss In the event that the insured property is totally lost or destroyed the amount payable shall be the cost of removing the damaged property (limited to the … Continue reading
This blog was co-authored by: Carly Lakin, Candidate Attorney In this judgment the court considered whether the principal was liable for the negligence of an independent contractor. An attorney at the Gqeberha Magistrates’ Court slipped on a wet floor and sustained injuries. He instituted action against the Minister of Public Works & Infrastructure as the … Continue reading
Occurrence clauses are commonly used to effect the application of deductibles on limits by aggregating claims. They may operate in favour of the insured as to the amount of the deductible because it avoids deductibles being separately applied for each separate claim. And may operate in favour of the insurer in regard to limits because … Continue reading
The doctrine of peremption requires a party which has lost a case to make up its mind. It cannot equivocate and acquiesce in a judgment or arbitration award and later seek to appeal. In South African law, if the conduct of an unsuccessful litigant is such as to point indubitably and necessarily to the conclusion … Continue reading
In this judgment, the South African appellate court, in referencing co-insurance clauses (which was in content a follow-the-lead clause), said: “In order to determine the proper meaning of the co-insurance clause, it is necessary to have regard to its purpose. In my view, the object of this clause was to protect the insured so that it … Continue reading
In the San Evans Maritime case, the English court described follow-the-lead clauses as follows: “11. Follow clauses come in different forms. Some oblige the following underwriter to follow the lead underwriter in relation to a large number of matters including alterations to the terms of the policy, surveys and settlement of claims (as in Roar Marine … Continue reading