Patrick Bracher (ZA)

Subscribe to all posts by Patrick Bracher (ZA)

Amazon has no product liability for third party product warehoused and shipped (US)

By Patrick Bracher (ZA) on October 15, 2018 Posted in General

A New Jersey court found that Amazon is not liable for a defective laptop battery it sold that caused a home to burn down. The plaintiff bought a laptop battery using an Amazon account which was sold by a Hong Kong company. She left the battery charging on her bed and the house burnt down … Continue reading

Claim by shareholders against directors under section 218(2) of Companies Act fails

By Patrick Bracher (ZA) on October 11, 2018 Posted in Banking

Shareholders of African Bank Investments Limited failed in their claim for over R720 million against the directors and auditors of African Bank. The plaintiffs sued unsuccessfully under section 218(2) of the Companies Act 2008 alleging that the conduct of the defendants resulted in a loss to the shareholders because of the drop in the share price. The … Continue reading

‘Fraudulent devices’

By Patrick Bracher (ZA) on September 19, 2018 Posted in Insurance

The English Supreme Court had the following to say regarding the standard insurance policy fraud clause which excludes liability if the insured makes a claim ‘by fraudulent devices’. The court said: ‘The expression is borrowed from a standard clause avoiding contracts of fire insurance which was widely used in the 19th and early 20th Centuries. … Continue reading

Medical prosthesis not defective nor abnormal risk (UK)

By Patrick Bracher (ZA) on September 18, 2018 Posted in General

The manufacturer of a hip prosthesis system (which was of a metal-on-metal design) for use in total hip replacement operations was sued by 313 individual claimants who alleged metal-wear debris damaged surrounding soft tissues necessitating revision surgery. The court found that the system was not defective and the claimants had not proved that it did … Continue reading

Responsibility of holding company for delicts of subsidiary (UK)

By Patrick Bracher (ZA) on September 10, 2018 Posted in General

A group of 218 Kenyans sued the English holding company of a subsidiary company in Kenya for which the plaintiffs worked, for failing to protect them against political violence that erupted in Kenya after the 2007 presidential election. The English court held that there was no arguable case against the holding company that it owed … Continue reading

Bank escapes liability for credit reference

By Patrick Bracher (ZA) on August 28, 2018 Posted in General

Playboy Club London sued an Italian bank for losses it suffered after it extended a credit facility to one of the bank’s customers on the basis of a favourable credit reference provided by the bank. A ‘well-known figure at a casino in Lebanon’ applied to Playboy Club for a cheque-cashing facility up to £800 000 to … Continue reading

Hiring a sexual offender who causes harm is an insured ‘accident’ (US)

By Patrick Bracher (ZA) on July 30, 2018 Posted in Insurance

The California Supreme Court held that the negligent hiring, retention and supervision of an employee who sexually abused a 13-year old at a school where he was working was an ‘accident’ for the purposes of a general liability policy. In Californian law an accident is ‘an unexpected, unforeseen, or undesigned happening or consequence from either … Continue reading

Dispute not settled if made subject to written agreement

By Patrick Bracher (ZA) on July 24, 2018 Posted in General

A UK court examined whether a construction dispute had been settled in the course of without prejudice correspondence between the parties’ lawyers. The letter of acceptance of the offer said the settlement was subject to approval by the board of the builder and would only become valid and binding when executed by authorised signatories. The … Continue reading

US court refuses ‘collapse’ cover for decayed building

By Patrick Bracher (ZA) on July 24, 2018 Posted in Insurance

A Federal Appeals Court in the US has refused to grant cover for alleged ‘collapse’ of a building which was insured under a property policy. The building in question had some decayed framing but the framing as a whole was sufficient to support the weight and loads imposed. The court held that the word ‘collapse’ … Continue reading

Proof of online questions in insurance application

By Patrick Bracher (ZA) on July 23, 2018 Posted in Insurance

Insurers could not reject liability on the basis that the insured had deliberately or recklessly misrepresented his address when applying for insurance because there was no clear evidence about the precise wording of the questions which appeared on the computer screen at the time the online application was made. Computer websites allowed the consumer to … Continue reading

Accidental damage occurs by chance and is not deliberate or inevitable

By Patrick Bracher (ZA) on July 23, 2018 Posted in Insurance

The UK high court refused to order insurers to indemnify Leeds Beckett University for the loss of a building which cracked and was subsequently demolished in 2011 because the damage was not accidental. The below-ground blockwork had turned into mush as a result of flowing ground water which the evidence revealed was there at the … Continue reading

Insurance – Is a stationary tractor spraying herbicide being used?

By Patrick Bracher (ZA) on July 17, 2018 Posted in Insurance

This insurance dispute went all the way to the Court of Justice of the European Union which found that the phrase ‘use of vehicles’ in EU law covered any use of a vehicle as a means of transport. The fact that a vehicle is stationary when the accident occurs does not itself preclude the use … Continue reading

No absolute duty to clear natural vegetation to prevent fire spreading

By Patrick Bracher (ZA) on July 17, 2018 Posted in General

A reasonable landowner is not obliged to ensure that in all circumstances any fire on its property will not spread beyond its boundaries. The landowner is obliged to take steps that are reasonable in the circumstances to guard against such an event occurring. If the landowner takes those steps and a fire spreads nevertheless, the … Continue reading

Director’s personal liability (UK)

By Patrick Bracher (ZA) on July 10, 2018 Posted in General

In a UK case the court made some pertinent remarks about the personal liability of a director: A director is not liable for the wrongdoing of her/his company merely by reason of being a director. The director is liable for wrongs personally carried out by her/him. A director is also liable where she or he … Continue reading

Disintegrating foundations caused by flowing water is gradual deterioration

By Patrick Bracher (ZA) on July 10, 2018 Posted in Insurance

A policy exclusion for damage caused by ‘gradual deterioration’ was held to exclude cover where a building had to be demolished by reason of foundations which disintegrated from flowing water. The building was built across a line of an old watercourse with seven natural springs in the vicinity and there was no proper drainage design. … Continue reading

Deafness from acoustic shock caused by a Wagner opera

By Patrick Bracher (ZA) on July 4, 2018 Posted in General

The claimant, a professional viola player at the Royal Opera House, was found to have suffered acoustic shock whilst sitting in front of the brass section of the orchestra during a rehearsal of Wagner’s Ring Cycle. It was found he was exposed to noise levels which created a risk to and resulting injury of his … Continue reading

Armed robbery is vis major

By Patrick Bracher (ZA) on July 3, 2018 Posted in General

Two consignments of cigarettes which were imported into South Africa from Zimbabwe were stolen in August 2009 by unknown armed robbers during a robbery from a customs and excise warehouse. The owners of the consignment claimed a rebate of customs duty under the Customs and Excise Act which allows a rebate in circumstances of vis … Continue reading

Arbitration clause not void for vagueness (UK)

By Patrick Bracher (ZA) on July 3, 2018 Posted in General

The UK Chancery Division held that an arbitration clause, which could be invoked over a dispute whether there had been ‘any major physical or financial change in circumstances affecting the operation’ of Tata Steel which imported goods through a Welsh port, was not void for uncertainty. The court quoted a nice passage from a previous … Continue reading

Strategically blocking an insolvency reorganisation plan is not bad faith (US)

By Patrick Bracher (ZA) on July 2, 2018 Posted in General

Where a creditor blocked a bankruptcy plan by buying available claims to get sufficient votes to do so, it was held that this was not a bad faith purchase. A finding of bad faith requires evidence of an ulterior motive. If a creditor seeks to protect its claim to the fullest extent by a strategic … Continue reading

When the costs exceed the claim (UK)

By Patrick Bracher (ZA) on July 2, 2018 Posted in General

Two UK judges have expressed their dismay over a matter that went to court for three plaintiffs with modest claims in the lower hundreds of pounds where the parties ended up spending GBP2 million on costs. The claim was against an airline for air tickets for cancelled flights. The court observed that from an early … Continue reading

No right to claim for negligent referral (US)

By Patrick Bracher (ZA) on July 2, 2018 Posted in General

An appeal court in New Jersey found that there is no law in terms of which a law firm can be held liable for a “negligent referral” for referring a former personal injury client to another lawyer who mishandled the claim. The plaintiff alleged that the referral lawyer who acted in the personal injury matter … Continue reading

Alleged costs to avert business interruption loss rejected (US)

By Patrick Bracher (ZA) on June 26, 2018 Posted in Insurance

In July 2012 a fire damaged equipment vital to the production of a steel pipe manufacturing plant in Arkansas. The fire was a covered peril and loss of business income and extra expenses were also covered. The court rejected the insured’s claim for an additional $14 million in mitigation costs incurred allegedly as ‘necessary expenses’ in … Continue reading

Recoverable car hire charges while vehicle repaired (UK)

By Patrick Bracher (ZA) on June 26, 2018 Posted in Insurance

When a car is hired whilst a vehicle damaged in an accident is being repaired the claimant is only entitled to the lowest reasonable basic hire rate of a reputable local car hire company. The cost of the collision damage waiver is also allowed. The plaintiff’s Jaguar XJ Supersport V8 was damaged in an accident … Continue reading

Action over stolen trade secrets does not fall under defamation cover (US)

By Patrick Bracher (ZA) on June 20, 2018 Posted in Insurance

A US company was sued for misappropriating trade secrets relating to a medical device and poaching a number of employees. The company was insured in terms of an advertising and personal injury section of its commercial general liability policy, and it attempted to allege that there was a claim for implicit defamation obliging the insurers … Continue reading