Topic: Insurance

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Compromise: settlement agreements

An agreement of compromise is the settlement of disputed obligations by agreement. A compromise exists where parties agree to settle previously disputed or uncertain obligations. Like any other agreement, a compromise is based on the contractual rules of offer and acceptance, with each party conceding something, either by diminishing their alleged claim or by conceding … Continue reading

Directors & Officers insurance – Exclusion for director gaining personal advantage (AUS)

The Federal Court of Australia found in March 2023 that a claim under a Directors & Officers Policy was excluded because the director had gained personal advantage from his wrongful act to which he was not legally entitled when he concealed information to avoid cancellation of a contract held with another company owned and controlled … Continue reading

Proving Factual Causation in Personal Injury Claims

In Nsibande v Passenger Rail Agency of South Africa, the plaintiff sought damages for personal injuries sustained from allegedly falling off a moving train. The defendant denied liability, stating that the train doors were checked and found to be in working order, and that the doors were closed at the time of the alleged incident. … Continue reading

Liability insurance welding exclusion – What is spark-producing equipment (Australia)

This December 2022 Australian judgment of Ritchie v Insurance Australia [2022] NSWCA 278) considered an event where two employees of the insured were engaged in installing reinforced steel into trenches as part of a residential building works and used a power cutter fitted with a cutting blade to cut reinforcing steel. The use of the … Continue reading

Claim for punitive constitutional damages after tender is set aside fails

The applicants had succeeded in a government tender which was subsequently set aside when irregularities in the tender were uncovered. Although the action for relief was moot, they asked the Constitutional Court for a judgment because they intended to pursue a claim for punitive constitutional damages. The relief was refused by the court because the … Continue reading

Insurers lose subrogation rights due to underlying contract waiver (US)

After paying about $80 million for claim for an explosion and fire that damaged the glass furnace and associated equipment of the insured’s glass manufacturing plant, the insurers unsuccessfully attempted to pursue subrogation claims against the defendant-contractors who were allegedly responsible for the incident because of negligence and breach of contract. The loss was in … Continue reading

Insurance and a specified uncertain event (Namibia)

In this recent Namibian High Court judgment, the insurer argued that the policy was invalid, and could not be concluded, because the formation of an insurance contract depends on the happening of a specified uncertain event and that at the time of the conclusion of the policy the event was already certain. The insurer argued … Continue reading

Insurance and Reasonable Precautions

In Govender v Guardrisk, the insurer rejected liability under the policy on the basis that the insured had failed to “…take all reasonable precautions to prevent loss, damage, accidents…” as required by the relevant clause in the general terms and conditions of the policy. The defence failed because the insurer failed to prove that the … Continue reading

Life insurance and fraud

In this judgment (dealt with here on material non-disclosure) the second material issue dealt with by the court was whether the insured truthfully represented his medical conditions in relation to his continued ability to work. The insurer alleged that the insured did not tell either the insurer or the examining doctor that he could perform … Continue reading

Big Read Book Series Volume 11 Norton Rose Fulbright South Africa’s Review of South African insurance judgments of 2022 is now out. You can view / download a copy of it HERE. Big Read Book Volume 11 is a comprehensive review of all the significant South African insurance judgments delivered in 2022. Volumes 4, 7 … Continue reading

Life insurance and material non-disclosure

In this judgment, the insured had two life policies with the insurer, which included life cover, severe illness benefits, and income continuation benefits. The insured amended the policies a number of times, but on none of these occasions did the insured disclose that he had been diagnosed with and treated for clinical depression.  The court … Continue reading

A reminder to employers; failure to guard against foreseeable harm at the workplace may attract liability

In circumstances where an employer fails to take reasonable steps to guard against the inherent dangers to employees in operating machinery on its premises, such entity may find itself liable for the damages sustained by the operator of the machinery. Operators of machinery must be reasonably trained by employers to ensure that they have the … Continue reading

Delictual liability: A text book claim

This blog was co-authored by Sebenzile Magagula, Candidate Attorney The plaintiff in this judgment sustained a lower back injury on the morning of his work shift in the defendant’s automotive manufacturing plant. The injury was sustained whilst operating the rear axle assembly line, shortly after he had been moved from the Press to the SSB … Continue reading

Liability for dangerous premises causing a slip & fall

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

Insurance indemnity denied because insured withheld material financial information (US)

The insured sought loss of hire coverage from various US and London insurers claiming in part that its factory processing vessel was unable to process fish in Alaska because of engine damage. The court held that the insured had breached an express duty to cooperate by withholding from the adjuster’s historical financial information, thus discharging … Continue reading

Disclaimer notices and gross negligence

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

Time bars in insurance policies and pleadings

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

Indemnity backing an insurance guarantee within a group of companies without section 45 compliance is void

This blog was co-authored by: Luke Schooling, Candidate Attorney The Supreme Court of Appeal held that an indemnity provided by one group company to support an insurance guarantee obtained by another group company was void where the requirements of section 45 of the Companies Act of 2008 (the Act) were not complied with because it … Continue reading

General liability insurance and statutory pollution clean-up obligations

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

Insurance and meaning of “sudden, unintended and unexpected happening”

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