Topic: Insurance

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Insurance and Reasonable Precautions

Photo of Donald DinnieBy Donald Dinnie on Posted in Insurance
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

Photo of Donald DinnieBy Donald Dinnie on Posted in Insurance
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

Photo of Donald DinnieBy Donald Dinnie on Posted in Insurance
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

Photo of Donald DinnieBy Donald Dinnie on Posted in Insurance
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

Photo of Deniro Pillay (ZA)Photo of Purnel GangiahBy Deniro Pillay (ZA) and Purnel Gangiah on Posted in Insurance
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

Photo of Donald DinnieBy Donald Dinnie on Posted in Insurance
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

Photo of Donald DinnieBy Donald Dinnie on Posted in Insurance
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)

Photo of Patrick Bracher (ZA)By Patrick Bracher (ZA) on Posted in Insurance
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

Photo of Donald DinnieBy Donald Dinnie on Posted in Insurance
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

Photo of Donald DinnieBy Donald Dinnie on Posted in Insurance
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

Financial Institutions Legal SnapshotBy Anika de Kock on Posted in Insurance
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

Photo of Donald DinnieBy Donald Dinnie on Posted in Insurance
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”

Photo of Donald DinnieBy Donald Dinnie on Posted in Insurance
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)

Photo of Patrick Bracher (ZA)By Patrick Bracher (ZA) on Posted in Insurance
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

Negligence claim for slip-and-trip on restaurant ramp not proved and rejected

Photo of Lisa KrieglerPhoto of Rethabile ShabalalaBy Lisa Kriegler and Rethabile Shabalala on Posted in Insurance
The plaintiff failed in her action against a takeaway restaurant for damages resulting from her slipping and falling while walking down a tiled ramp at the restaurant’s exit. The court, besides applying the disclaimer notice, was not satisfied that the plaintiff had discharged the onus resting upon her to prove that the restaurant had failed … Continue reading

Disclaimer notices and the Consumer Protection Act

Photo of Donald DinnieBy Donald Dinnie on Posted in Insurance
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

Photo of Donald DinnieBy Donald Dinnie on Posted in Insurance
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

Photo of Donald DinnieBy Donald Dinnie on Posted in Insurance
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

Photo of Deniro Pillay (ZA)Photo of Purnel GangiahBy Deniro Pillay (ZA) and Purnel Gangiah on Posted in Insurance
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

Photo of Donald DinnieBy Donald Dinnie on Posted in Insurance
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

Photo of Patrick Bracher (ZA)Photo of Daniel BreierBy Patrick Bracher (ZA) and Daniel Breier on Posted in Insurance
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
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