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Articles by Penny Biram
Draft guidance note for insurers: climate-related risks
Here Climate Guidance_Disclosures_Insurers (resbank.co.za) the Prudential Authority’s draft guidance notes for insurers and climate-related risks and disclosures. The guidance notes adopt the recommendations of the task force on climate-related Financial Disclosures and International Sustainability Standards Board. Deadline for comments is 13 September 2023
Quantum of damages in medical malpractice cases: Volume 12
Volume 12 of Norton Rose Fulbright’s Big Read Book series is now out. It is a comprehensive review of judgments dealing with the quantum for damages in medical malpractice cases and which can be found here. This volume reviews proof of special damages including contingency deduction, life expectancy and loss of earnings. We look at quantifying general damages, contributory negligence and apportionment of damages as well as legal and expert fees.
First Regulatory Actions Report published
On 18 April 2023, the Financial Sector Conduct Authority published its first Regulatory Actions Report, covering the period 1 April 2022 to 31 March 2023. The Report highlights enforcement action taken during the reporting period, with a view to not only deterring unlawful conduct, but also to create awareness of regulatory requirements.
Sustainable Finance: New Markets for Islamic Finance
This blog was co-authored by Kristin January, Trainee Associate Islamic finance has shown to be systemically important in many jurisdictions and is growing in the wider regions of the Middle East, Asia and Africa. Recent discussions focusing around the favourable prospects of green Sukuk are another growth driver for Islamic Finance. COP-27 highlighted the massive investment required to tackle climate change in emerging markets (EM) including those in the Middle East and Africa (MEA).
Compromise: settlement agreements
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Claims occurring D&O policy: when is claim first made against insured (AUS)
In March 2023 the Australian Federal Court found that a claim had first been made against a director when an email was sent to his address but allegedly not read by him till much later. A “claim” made against the director under the claims occurring policy was the “written notice received by a director for a demand for compensation” for a wrongful act covered by the policy. The email address used for the claim was an operational email account. There was no malfunction of the account.
Claim for punitive constitutional damages after tender is set aside fails
The applicants had succeeded in a government tender which was subsequently set aside when irregularities in the tender were uncovered. Although the action for relief was moot, they asked the Constitutional Court for a judgment because they intended to pursue a claim for punitive constitutional damages. The relief was refused by the court because the remedy for such damages, arising from the obligations already performed under the contract was most unlikely to arise in the circumstances.
Insurance and Reasonable Precautions
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 insured drove recklessly. The insured had been involved in a motor vehicle collision in which his motor vehicle was damaged beyond repair.
Will Term SOFR become the leading US dollar lending benchmark in developing markets?
This blog was co-authored with Rory Scott and Lara Thom, Candidate Attorney’s In 2017, the Alternative Reference Rates Committee (ARRC) recommended the replacement of LIBOR with the Secured Overnight Financing Rate (SOFR). Since the proposed transition, developing markets have been rudderless regarding which benchmarks to apply.
Life insurance and fraud
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 the full duties of his occupation. Therefore, both the approval of pre-litigation claims and the payment of some of them was induced by fraud.
Beware of Accidental Cyber Coverage
A US appeals court reversed a judgment of the lower court which had declined to read-in cyber coverage in a commercial general liability policy. The insured operated retail properties and took out a commercial general liability policy ("the CGL Policy") with the insurer.
Beware of Accidental Cyber Coverage
A US appeals court reversed a judgment of the lower court which had declined to read-in cyber coverage in a commercial general liability policy. The insured operated retail properties and took out a commercial general liability policy (“the CGL Policy”) with the insurer.
Prescribed rate of interest is 10.5% from 1 January 2023
The prescribed rate of interest changed with effect from 1 January 2023 to 10.5% per annum. The previous rate was 9.75% per annum. According to the Prescribed Rate of Interest Act, interest on debts where no rate is prescribed is calculated at the repo rate plus 3.5%. The prescribed rate of interest applies to all debts unless a different rate is set by law, by trade custom or by agreement between the parties.
The Big Read Book Volume 10 - Presenting your evidence in the small claims court
The initiative to establish the Small Claims Court began in the early 1980's. The result of the Hoexter Commission of Enquiry was the passing of the Small Claims Court Act in 1984. The Small Claims Courts are designed to settle small civil claims (currently the monetary claim limit is R20 000.00) in an informal and [...]
Indemnity backing an insurance guarantee within a group of companies without section 45 compliance is void
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 amounted to ‘financial assistance’.
General liability insurance and statutory pollution clean-up obligations
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 land where the pipeline is positioned. However, the land that had been polluted belonged to another party.
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 Big Read Book Series - Volume 7
Norton Rose Fulbright’s collection of South African insurance judgments for 2020 is now available here. Volume 7 of The Big Read Book series complements the first six volumes of the Big Read Book already published and which can be read here.
Regulation on Crypto Assets
In general notice 1350 of 2022, effective as of 19 October 2022, the FSCA has formally declared a crypto asset as a financial product under the Financial Advisory and Intermediary Services Act, 2002.
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.
Liability excluded for motor vehicle used as tool of trade (Aus)
An Australian Supreme Court dismissed a claim for a contribution by one insurer against another because the earthmoving plant loader that was involved in the accident was being operated at the time as a mechanical tool of trade. A tool of trade was defined to mean “the operation of your motor vehicle whilst engaged in and undertaking its designed purpose of excavating, digging, grading, drilling, spraying, scraping, pumping, vacuuming, suction, lifting, or like operations”.
Keeping a company’s contract alive creates a ‘personal advantage’ for a director under D&O Policy exclusion (Aus)
An Australian federal court held that where a director failed to disclose the financial distress of his company to the prejudice of the other contracting party under a constructions contract, the director “gained personal profit or advantage” for the purposes of an exclusion of the Directors and Officers Policy and no claim was payable by the insurers under the policy. The director and the company had a community of interests in seeing the building contract remained on foot.
Distinguishing trademark and patent protection and the Nespresso coffee capsules court battle
This blog was co-authored by: Allison Williams, Director and Bongekile Gasa, Candidate Attorney. The term trademark law refers to a branch of intellectual property law which differentiates between different goods and services through providers’ independent use of brand names, slogans, logos or other non-traditional mark. The term trademark can be described as a sign capable of distinguishing the goods or services of one enterprise from those of other enterprises.
Motor collision claimants can recover diminished value of repaired vehicles
The Massachusetts highest court found that an insurer is obliged to compensate the claimants not only for repairs to their vehicles to restore them to pre-collision condition but also for what is known as inherent diminished value (IDV). IDV damages are included as part of the amounts to which a claimant is legally entitled to collect for property damage. The general rule for measuring property damage is diminution in market value and includes intangible damage such as diminution in value.
Lessee who buys the leased property has rights and obligations as owner not lessor (confusio)
The lessee of a property under a 30-year notarial land lease agreement with Transnet Limited sublet portions of the property to sub-lessees who subsequently acquired rights under a lease assignment agreement. When the lessor bought the property, payment obligations under the lease assignment agreement terminated. A sub-lessee who had taken assignment of rights under the lease which included an ongoing payment sought to enforce the right to receive those payments.
Certain private bodies exempted from compiling information manual
The Promotion of Access to Information Act of 2000 requires most entities to provide an information manual setting out the documents which are readily available to anyone seeking information from the entity. The number of businesses, including private companies, required to prepare a manual is inestimable. Some private companies have now been exempted from the need to produce a manual for the next six months up to 31 December 2020.
Liability for omission
Authors: James Donald and Kristen de Wet In February 2020, the Johannesburg High Court held that the failure by a security company to warn its clients that criminals were impersonating its employees to uplift cash, constitutes an omission of crucial information which provides grounds for an action for damages in delict.
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