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
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
In March 2023 the Australian Federal Court found that a claim had first been made against a director when an email was sent to his address but allegedly not read by him till much later. A “claim” made against the director under the claims occurring policy was the “written notice received by a director for … Continue reading
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
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
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
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
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
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
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
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
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
This blog was co-authored by: Adrienne Cloete, Candidate Attorney. The hosting school hosted a rugby tournament. During a match with a visiting school the claimant (Izak), playing for the visiting school team suffered a neck injury after being tackled by a player from the opposing team. The player was carried off the field by two … Continue reading
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
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 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
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 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
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
The insured drove a forklift decorated like a float with his wife on a swing hung from the forks to celebrate her 50th birthday, surrounded by partygoers. It was held that his liability for running over a party guest’s foot was covered because it was not excluded coverage for bodily injury arising out of mobile … 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