In this Zambian judgment of Mattaniah Investments Limited and Zambia State Insurance Corporation Limited, the Zambian High Court considered the meaning of “accident” in a policy which indemnified the insured for loss of broiler chickens due to “accident, disease and illness”. The court accepted that an “accident” is simply something unusual, unforeseen or an unexpected … Continue reading
In this particular judgment, discussed here the Supreme Court of Appeal held that the phrases “of whatsoever nature” and “howsoever arising” as used in the disclaimer clauses in the contract under consideration should be given their ordinary literal meaning. This is consistent with earlier judgments. Those clauses are sufficiently wide in their ordinary import to … Continue reading
In this judgment, the Supreme Court of Appeal upheld the defendant’s reliance on the disclaimer of liability provisions in its warehousing and distribution contract with the plaintiff. After reviewing relevant judgments on disclaimer clauses and principles, the judgment once again confirms that in appropriate factual circumstances and disclaimer wording, South African courts will uphold reliance … Continue reading
A number of decisions in the United States courts confirm that there is such a thing as bad faith mediation. Those are considered in this high court judgment. While those judgments are instructive, it is necessary to recognise the distinction between voluntary and coercive mediation. High Court Rule 41A is constructed on the premise of … Continue reading
This blog was co-authored by: Tristan Marot, associate designate In the high court judgment Legal Expenses Insurance Southern Africa Limited t/a Legalwise v Melamu, the high court confirmed that as a “general rule an employer is not liable for the wrongdoing of an independent contractor unless the employer was personally at fault.” The plaintiff sued a … Continue reading
Superimposed over ordinary voluntary mediation, where a party can withdraw at any stage without potentially attracting any adverse consequences, is the judicially sanctioned High Court Rule 41A procedure obliging the parties to consider a non-adversarial resolution to a dispute which is already before the courts. The provisions of rule 41A are consistent with the understood … Continue reading
In this Gauteng High Court judgement, the court provides some useful comments on the application of High Court Rule 41A requiring litigants to attempt to mediate their dispute, and the question of bad faith mediation. This is helpful, considering the embryotic stage of the rule and the paucity of case law or literature on the … Continue reading
This blog was co-authored by: Caitlin Gardiner, Candidate Attorney In this judgement in the Supreme Court of Appeal the claimant submitted that the hospital breached its statutory duty in that it failed to ensure the proper safe-keeping of the hospital records of the claimant and her cerebral palsied child. The court considered the application of res … Continue reading
This blog was co-authored by: Caitlin Gardiner, Candidate Attorney In this claim, alleging that the hospital staff’s negligence during the claimant’s labour resulted in her child’s cerebral palsy, the Supreme Court of Appeal addressed the issue of how to assess expert evidence in a field where medical certainty is virtually impossible. In such circumstances a … Continue reading
While this Ohio Appellate Court judgment found that the insured did not suffer direct physical loss or damage so as to warrant coverage, it also considered the application of the virus exclusion in the policy The exclusion reads: “We will not pay for loss or damage caused directly or indirectly by any of the following. … Continue reading
The German Federal Social Court held that an area sales manager working from home was on his way to work and therefore suffered a workplace accident when he slipped down his spiral staircase and broke a thoracic vertebra while going from his bed directly to his computer. It was important that he alleged that he … Continue reading
In finding that the Road Accident Fund Act three year extinctive prescription period (with some exceptions) did not apply to the claimant who had become a person of unsound mind because of the motor accident, the Constitutional Court applied the impossibility principle (lex non cogit ad impossibilia). It was held that the claimant’s action had … Continue reading
An unrehabilitated insolvent, who is a nominated beneficiary in terms of a life insurance policy, is not entitled to the proceeds of the policy to the exclusion of the trustees of their insolvent estate. The claimant was married in community of property to the deceased, his wife. A contract of insurance was concluded with the … Continue reading
This Californian Appeal Court judgment previously discussed here (Part 1, Part 2 and Part 3)) was also required to consider the insured’s argument that the Civil Authority Coverage Clause applies because the government orders were made in direct response to the continued and increasing presence of the Coronavirus, a dangerous physical condition, on and around … Continue reading
In this Californian Court of Appeal judgment previously discussed here (Part 1 and Part 2) the insured also argued, to support its contention that it incurred a suspension of operations caused by a direct physical loss of or damage to property, that no express exclusion for loss or damage resulting “from any virus” was included … Continue reading
A New York court of Appeals held that a wrongful act liability policy covered funds that the insured disgorged as part of a settlement with the Securities and Exchange Commission. The settlement payment was not excluded from insurance coverage as a “penalty imposed by law” under the policies. The policy provided coverage for “loss” that … Continue reading
The Californian Court of Appeal in this judgment and discussed here also considered whether the insured’s business was suspended due to direct physical loss of its property. The policy required suspension of operations caused by direct physical loss of property. The insured argued that regardless of the physical presence of the Covid-19 virus, it had … Continue reading
In this Court of Appeal Judgement in the State of California, the Californian appeal court dealt authoratively with the question of whether a commercial property insurance policy provides coverage for a business’s lost income due to the Covid-19 pandemic. The court pointed out that while at that time no California appellate court had addressed the issue … Continue reading
In November 2021 the Financial Services Tribunal emphasised that “time and again it has been pronounced that when there is a material dispute of fact, there should be a hearing of oral evidence”. It is only once the material disputes of fact are addressed that one can conduct an enquiry into the negligence, causation and … Continue reading
This recent Cape High court judgment contains some useful guidance for insurers in adjusting covid-19 business interruption claims involving recovery or remission of rental. The court confirmed that as a matter of general principle: a lessee is entitled to claim rental remission where there is a deprivation of or lack of beneficial use of occupation … Continue reading
In this judgment, Berkshire Assets (West London) Limited v AXA Insurance Plc [2021] EWHC 2689 (Comm) the insured sought to recover an indemnity pursuant to a Contractors’ All Risks and Business Interruption policy. The insured denied liability and avoided the policy alleging that the insured failed to disclose the admitted fact that one of its directors … Continue reading
Anyone who is a significant owner of a financial institution is required by Joint Standard 1 of 2020 to have in place procedures for assessing and attesting to fitness and propriety by 1 December 2021. This must thereafter be done on an annual basis and on written request by either Authority. The Joint Standard 1 of … Continue reading
In this judgement, the English high court decided that the insurer was entitled to avoid an employer’s liability insurance policy on grounds of material non-disclosure and misrepresentation. The insurers had shown that the facts misrepresented or not disclosed would have influenced the mind of a reasonably prudent underwriter in exercising their underwriting judgment as to … Continue reading
This judgement considered the interesting question of legal professional privilege, the rights of successors in title, and joint retainer privilege. The insured and the insurer jointly engaged attorneys to act on their behalf in relation to various claims relating to cosmetic surgery and the use of silicone breast implants. The attorneys were appointed to act … Continue reading