Topic: Insurance

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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

When is a sub-subcontractor an insured (AUS)

An Australian supreme court was faced with the question whether a sub-subcontractor was a named insured or agent of the named insured under a general liability policy relating to demolition work on a construction site where a fire attributed to the conduct of the sub-subcontractor caused damage. The court held that on the policy wording … Continue reading

Disclaimer notices and the Consumer Protection Act

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

Insurance and reasonable precautions

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

Insurance and common interest legal professional privilege

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

The occupier of a property has a legal duty to prevent foreseeable harm to persons visiting the property

In a November judgment in Lakay v Minister of Justice & Another 2022 ZAWCHC 221, the court confirmed that the occupier of a property has a legal duty to prevent foreseeable harm to persons visiting the property. In determining liability, a factor which the court would take into account is whether the steps taken by … Continue reading

Insurance and what constitutes Property Insured

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

The nature of a broker’s mandate

In a decision involving a broker who introduced business to a medical scheme, the court drew an important distinction between a mandate to enter into contracts on behalf of the medical scheme as the principal and a mandate or authority to introduce business to the medical scheme. Where a principal appoints someone to perform juristic … Continue reading

Business interruption insurance: commencement of the Indemnity Period (UK)

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

Rental, covid-19 and impossibility to pay rent

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 connection with”: Insurance policies (UK)

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

Covid-19 business interruption claims, savings and government assistance (UK)

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

Business interruption claims and Additional Increased Cost of Working (UK)

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

Insurance, rejection, Time Bar clauses and rejection of insurance claims (Botswana)

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

What is ‘replacement’ of a statute? (Aus)

The interpretation clause in a policy of insurance included a provision that “references to a statute law also includes all its amendments or replacements”.  The Australian Quarantine Act had been replaced by the Bio Security Act, 2015 before the policy came into force but was held to be a replacement statute.  The court held that … Continue reading

Property Insurance: calculation of total loss

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

Downing of Flight 17 by Russian-backed separatists was ‘insurrection’ under war exclusion (US)

The family of a student, who died in 2014 when the Donetsk People’s Republic, a Russian-backed separatist group in eastern Ukraine, shot down Malaysia Airline’s Flight 17, sued Western Union for damages for “providing ongoing and essential financial support to the DPR by facilitating money transfers”.  The court held that Western Union could not recover … Continue reading

Cover ‘afforded’ by umbrella policy means cover ‘provided’ (US)

The insured sought cover under a catastrophe umbrella policy when a claim under the underlying policies had been dismissed for late notice.  The umbrella policy covered “any claim alleging bodily injury, personal injury or property damage, insurance for which is not afforded by the underlying policies”.  The court held that the word “afforded” in the … Continue reading
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