Topic: Insurance

Vehicle as ‘tool of trade’ and ‘loading’ under insurance exclusion (AUS)

By Patrick Bracher (ZA) on July 12, 2023 Posted in Insurance

In July 2023 the Australian Federal Court held that an excavator loaded onto the back of a trailer which struck a bridge was not a “vehicle” excluded from cover under the Public and Product Liability Insurance Policy, but an included “tool of trade”. The court also held that whilst the excavator was being conveyed between … Continue reading

Contractual or delictual liability

By Donald Dinnie on July 12, 2023 Posted in Insurance

This blog was co-authored by Maano Manavhela, Candidate Attorney. In this case, the parties entered into a written contract whereby the defendant would provide cash management and security services. The claimant’s money was lost during a cash-in-transit heist whilst in the custody of the defendant. The court found that the loss sustained by the plaintiff … Continue reading

Cessions in security, parate executie, and performing unenforceable agreements

By Patrick Bracher (ZA) on July 7, 2023 Posted in Insurance

In a decision involving an elaborate set of facts, the Supreme Court of Appeal reminded us of certain legal principles relating to parate executie and the performance of contracts which the law says have no force. When an asset (in this case loan account claims) is ceded in securitatem debiti (as security), the principle of … Continue reading

Contract works exclusion not limited to works owned by or in possession of insured (AUS)

By Patrick Bracher (ZA) on July 6, 2023 Posted in Insurance

A July 2023 judgment by the Federal Court of Australia held that by reason of the definition of “Contract Works” in the Contractors Liability Policy, the contract works exclusion was not limited to those parts of the works owned by or in the possession of the insured because the natural and ordinary reading of the … Continue reading

Exemption clause enforceable in cases of liability arising from employee theft

By Daniel Breier on July 5, 2023 Posted in Insurance

An exemption clause which has the effect of excluding a party’s liability for theft by its employees is not contrary to public policy and is enforceable. This was the ruling of the Constitutional Court in Fujitsu Services Core (Pty) Limited v Schenker South Africa (Pty) Limited [2023] ZACC 20. This issue divided the Court, with five judges … Continue reading

Insurance and aggregation clauses (UK)

By Donald Dinnie on July 5, 2023 Posted in Insurance

There is a substantial body of English case law explaining the import of a contrast between different aggregation clauses. AXA Reinsurance (UK) PLC v Field (1996) 1 WLR 1026 at 1035 contrasted the words “arising from one originating cause” with the words “arising out of one event” used to define the unifying factor used in … Continue reading

Problems with ‘other insurance’ clauses

By Patrick Bracher (ZA) on July 3, 2023 Posted in Insurance

In a US decision as to which of two insurers was the primary insurer with a duty to defend the policyholder, the ‘other insurance’ clauses in each policy were different. The ‘other insurance’ provision in the Secura policy provide that “if other valid and collectable insurance is available to the insured for a loss” coverages … Continue reading

Covid-19 Insurance and Damage (UK)

By Donald Dinnie and Patrick Bracher (ZA) on July 3, 2023 Posted in Insurance

In this judgment the insured restaurant argued that the requirement in the murder, suicide or disease extension that the interruption or interference with the insured business be caused by damage did not require physical damage. It was common cause that there had been no physical loss or damage to the insured premises or property used … Continue reading

Many risks are exceeding the capacity of the insurance market

By Patrick Bracher (ZA) on July 3, 2023 Posted in Insurance

An increasing number of non-life risks are seen as being too large to be absorbed by the private insurance and reinsurance market or needing premiums or limits or both that reduce the cover available. Since the Covid-19 claims were shoe-horned in by the courts of the UK and South Africa to provide extensive interruption cover … Continue reading

Covid-19 insurance, “at the premises” and causation (UK)

By Donald Dinnie on June 27, 2023 Posted in Insurance

In this high court judgment the court considered whether “at the premises” disease cover entailed the same approach to proximate causation as the disease cover considered by the Supreme Court in Financial Conduct Authority v Arch Insurance (UK) Limited [2021] UK SC 1. The relevant wording of the policy in the lead action read: “The … Continue reading

Voetstoots clause does not cover fraudulent misrepresentation

By Anika de Kock and Stacy Smit on June 26, 2023 Posted in Insurance

The Supreme Court of Appeal awarded damages to the purchasers of a guesthouse which had a serious leaking roof because the seller failed to disclose the defects he was aware of. The voetstoots clause in the deed of sale was inapplicable because the claim was founded on delictual liability for fraudulent non-disclosure/misrepresentation and not on … Continue reading

Breach of an insurance policy may lead to damages not cancellation

By Patrick Bracher (ZA) on June 22, 2023 Posted in Insurance

Depending on the wording of an insurance policy, a breach by the insured will not necessarily entitle the insurer to cancel the policy without a specific right to do so. According to the wording or, if not explicitly dealt with, the materiality of the breach, the insurer may only have a damages claim for loss … Continue reading

New emerging risk insights

By Patrick Bracher (ZA) on June 21, 2023 Posted in Insurance

Swiss Re has published their latest SONAR (Systematic Observation of Notions Associated with Risk). Many of the risks mentioned are specific to the northern hemisphere but some of them will be of interest locally in South Africa.… Continue reading

A forklift is a motor vehicle as defined in the Road Accident Fund Act

By Patrick Bracher (ZA) on June 21, 2023 Posted in Insurance

The Supreme Court of Appeal held in June 2023 that a forklift is not a motor vehicle as defined in the Road Accident Fund Act of 1996 which defines a ‘motor vehicle’ as “any vehicle designed or adopted for propulsion or haulage on a road by means of fuel, gas or electricity …”. The three … Continue reading

Insureds, the duty to act in good faith and fraud clauses (Part 2)

By Donald Dinnie on June 19, 2023 Posted in Insurance

The questions on appeal in this Supreme Court of Appeal judgment were whether the policy fraud clauses entitled the insurer to repayment of all the amounts paid to the insured subsequent to the insured event when the insured with full knowledge of his misrepresentations submitted a partly fraudulent claim; whether the doctrine of accrued rights … Continue reading

Insureds, the duty to act in good faith and fraud clauses (Part 1)

By Donald Dinnie on June 15, 2023 Posted in Insurance

In this Supreme Court of Appeal judgment the court confirmed that insured persons are under a duty to act in good faith in their dealings with insurers. Accordingly, the wilful lodgement of a false claim by the insured constitutes the breach of a duty of good faith which entitles the insurer to terminate the policy. … Continue reading

A reminder on how to accurately determine quantum in motor vehicle collisions.

By Shrivar Chendip on June 14, 2023 Posted in Insurance

This blog was co-authored with Jason Hudson, Candidate Attorney. In February 2023, the Northwest High Court revisited the methods for determining damages suffered to a motor vehicle. The plaintiff claimed a total of R185 056 in damages for collision damage to a motor vehicle. Despite a judgment on merits being granted in favour of the … Continue reading

A non-life insurer can insure its first-party risks

By Patrick Bracher (ZA) and Tristan Marot on June 13, 2023 Posted in Insurance

A March 2023 decision of the Financial Services Tribunal found that there is no implied prohibition in the Insurance Act on ‘traditional’ insurers (not cell) underwriting risks for both its own first party risks and third party risks. Abacus Insurance Limited (“Abacus”), a traditional insurer, holds a non-life insurance licence, permitting it to underwrite third … Continue reading

School Injury and Liability

By Donald Dinnie on June 7, 2023 Posted in Insurance

This blog was co-authored with: Maano Manavhela, Candidate Attorney In this case, the Plaintiff’s two children aged 5 and 6 years old, sustained severe injuries at Shoshanguve Primary school when a newly constructed gate fell on them whilst they were on their way to the school’s portable toilets unsupervised. These severe injuries included broken bones … Continue reading

Insurable interest and unascertained bulk goods in storage or transit(UK)

By Donald Dinnie on June 6, 2023 Posted in Insurance

In this April 2023 judgment the UK Court of Appeal found that an insured may have an insurable interest in cargos of grain in circumstances where they do not form an identified part of the bulk grain stored or shipped. In a dispute that dealt with a claim under a Marine Cargo Open Policy, the … Continue reading

Revisiting repudiation of a contract

By Shrivar Chendip on May 24, 2023 Posted in Insurance

This blog was co-authored with: Jason Hudson, Candidate Attorney Platinum Property Enterprise (Pty) Ltd v Mcshane and Another The Western Cape High Court heard an application for an interdict and specific performance relating to the sale and transfer of immovable property. The purchaser and seller concluded a sale agreement where the purchaser would pay the … Continue reading

US court refuses to apply war exclusion to cyberattack

By Patrick Bracher (ZA) on May 23, 2023 Posted in Insurance

In May 2023 a New Jersey US Appellate Division refused to exclude insurers from coverage under an all-risks property insurance policy because the cyberattack which infected and damaged thousands of the claimant’s computers in its global network did not amount to “hostile/warlike action”. Merke & Co, a multinational pharmaceutical company was the victim of the … Continue reading

Sale of land agreement is void if it omits material terms (in this case subdivision)

By Patrick Bracher (ZA) on May 17, 2023 Posted in Insurance

The parties concluded a written sale of land agreement for unimproved erven purchased with the aim of subdividing and developing them into residential erven but an immediate subdivision was required because one erf extended into an adjacent development. The agreement was void because the parties had not agreed on the exact property sold because of … Continue reading

Where parties reach a settlement it puts an end to dispute and any litigation

By Patrick Bracher (ZA) on May 10, 2023 Posted in General, Insurance

The essence of a compromise (settlement) is the final settlement of disputed or uncertain rights or obligations by agreement between the disputing parties. Unless the settlement provides otherwise, it extinguishes the disputed rights or obligations. Where there is litigation, the purpose of a compromise is to prevent or put an end to the litigation. It … Continue reading