In this recent Australian judgment the appeal court said: “The contra proferentem principle is a rule of last resort. The rule acknowledges that, in cases of ambiguity, a liberal approach may be adopted in the construction of an insurance contract. However, it is preferable that the court should struggle with the words used as applied … Continue reading
In this judgment, the claimants claimed in delict for loss of support arising from the death by suicide of the claimants’ husband and father. The deceased had been involved in a motorcycle accident in which he collided with another vehicle driven by a driver insured in terms of the Road Accident Fund Act. As a … Continue reading
The courts get called upon to decide some extraordinary things (often in custom duties matters). The Supreme Court of Appeal on 09 October 2023, for the purposes of the import tariffs under the Customs and Excise Act of 1964, came to the surprising conclusion that a bicycle frame and fork bear the essential character of a … Continue reading
This blog was co-authored by Candidate Attorneys, Hansica Naidu and Jeneil Peterson. The purpose of an admission of fact is to narrow the issues which will need to be determined by a Court. In order to do so, this must be done correctly and in accordance with section 15 of the Civil Proceedings Evidence Act … Continue reading
In three similar cases in North Dakota US the court upheld a provision in the insurers property owners policy that excused the insurer from paying “on a replacement cost basis for any loss or damage until the lost or damaged property is actually repaired or replaced” and the repairs and replacements are made “as soon … Continue reading
A party to litigation can assert legal privilege when documents or any other evidence is obtained or brought into existence for purposes of such party’s submission to a legal advisor for legal advice and litigation is pending or contemplated as likely at the time. The facts in this case unpacked the principles of legal privilege. … Continue reading
The Covid-19 insurance litigation continues in the United States of America. The matters are now reaching the appeal courts. In this September 2023 Nevada Supreme Court judgment the appeal court overturned the lower court’s decision to allow the case to proceed. The court found that the Covid-19 virus did not constitute “direct physical loss or … Continue reading
A Third Party Liability Policy relating to a tower block residential building insured the principal contractor as well as “contractors and subcontractors”, and others all for their respective rights, interests and liabilities. The court held that the insurance covered the structural engineers according to the plain meaning of the word “subcontractor”. The plain meaning refers … Continue reading
An engineer firm WSP Structures was liable to make payment of damages arising from its professional negligence. The debt was paid by the parent company WSP Australia. Despite this payment the insurers of WSP Structures were not relieved of the liability to indemnify the insured on the basis that WSP Structures debt had been discharged. … Continue reading
The insurers of a structural engineering firm liable for losses resulting from negligence had agreed to indemnify its insured but no indemnity had yet been paid. The court held that the structural engineer’s liability insurers could not refuse to pay the claim on the basis that the insured had already been indemnified. Such a defence … Continue reading
In September 2023 the Supreme Court of Appeal held that, where 8 000 individual funeral policy members had formed part of a group scheme under the Long-term Insurance Act 1998 which was no longer a “group” scheme as defined in the Insurance Act 2017 from 01 July 2018, the insurance policies and the related intermediary … Continue reading
This 2012 judgment in which Norton Rose Fulbright successfully acted for the insurer, is worth revisiting in the context of the unprecedented levels of flooding being experienced in South Africa (and around the world). The insured had been engaged by the Government of Botswana to construct a dam and was required to design and construct … Continue reading
A Munich Re management board member has stated that the insurer is prepared to divest cyber business over accumulation concerns. The board member said that there is a need to recognise and understand accumulation potential in order to develop a sustainable cyber insurance market. Overexposure could lead to failures. Other insurers are said to be increasing … Continue reading
A Maryland US court declined a doctor’s request for an indemnity from his medical malpractice insurers because the insured doctor failed to report a request for medical records from the patient’s lawyer as required by the policy during the policy period. The attorney’s request for medical records was sent on 20 April 2021. The insurance policy … Continue reading
It is a universal principle of insurance that where two policies covering the same loss purport to cancel each other out and only cover losses in excess of what other insurers cover, liability will be shared on a pro rata basis, usually equally. In a Georgia US decision regarding coverage for the same losses under … Continue reading
Most people are not aware that according to the Health Professions Council of South Africa’s rules, private hospitals cannot employ doctors. While no single provision prevents a private hospital from employing a healthcare practitioner, various health legislation and guidelines read together do. Under the National Health Act, 2003, a private health establishment is a health … Continue reading
Chapter III of the Prescription Act, 1969 deals with the extinction of debts by prescription. But how does this relate to personal injury cases? Most claims for damages prescribe in three years, but prescription does not run against minors (people under the age of 18), those with severe mental and intellectual disabilities, or those under … Continue reading
An indemnity policy constitutes a contractual agreement in terms of which the insurer indemnifies the insured in the event of a loss. The policy is neither intended to unjustifiably enrich nor undercompensate the insured. Its primary purpose is to restore the insured to their prior financial position subject to indemnity limits and avoid double indemnity. … Continue reading
A Massachusetts appeal court refused to uphold an insurer’s fire claim rejection that was based on an alleged failure of the insured to submit to a “reasonably required” examination under oath in the course of investigating the claim because, on the facts, the insured had not wilfully and without excuse refused to present its president … Continue reading
In this English judgment, the court considered whether it was appropriate to impute to individual underwriters’ material information they did not actually know, but the claims team did. The George Hotel was destroyed in a fire in July 2019. The first claimant, The George on High Limited, owned the hotel but the hotel and restaurant … Continue reading
This Supreme Court of Appeal judgment http://www.saflii.org/za/cases/ZASCA/2021/16.pdf dealt with the case of the plaintiff who was mistreated and injured in the course of a protest by trade union members on premises where she was employed. The question was whether her injuries constituted an ‘accident’ as defined under section 1 of the Compensation for Occupational Injuries … Continue reading
In this Australian judgment previously dealt with here the court had to consider whether the insured’s claim to be indemnified for its liability for a slip and trip claim was excluded by reason of the building and local authority regulation exclusions which read: “We do not cover We will not pay for any loss, damage … Continue reading
This Australian judgment considered whether the insurer could correctly rely on a number of exclusions to a claim by its insured for cover under the liability section of the policy. The policy used two composite formulations to connote the requisite relationship between the liability and the exclusion. The first formulation excluded liability “arising from, or … Continue reading
The August 2023 High Court case of Horn & Another v Nel & Others discusses when, in terms of Section 3(2) of the Arbitration Act, a court can set aside a valid arbitration agreement. The applicants asked the court to set aside an arbitration agreement concluded in terms of a dispute resolution clause of a … Continue reading