Negligent lawyer must compensate RAF client, rules Western Cape High Court

A Cape Town law firm has been found to have been negligent in dealing with its dealt  client’s Road Accident Fund (RAF) damages claim. 

The attorney who was responsible for pursuing the claim against the RAF was also found to have have breached the mandate due to the negligence.

The plaintiff averred that in March 2020, he established that because of the lawyer’s breach of the agreement, or the breach of its legal duty to him, his RAF claim had prescribed as the lawyer had wrongfully and negligently failed to prosecute the RAF claim timeously and within the statutory time of five years.

The plaintiff averred that in March 2020, he established that because of the lawyer’s breach of the agreement, or the breach of its legal duty to him, his RAF claim had prescribed as the lawyer had wrongfully and negligently failed to prosecute the RAF claim timeously and within the statutory time of five years.

In his defence to the court, the lawyer, the sole practitioner at the law firm, denied knowledge of the accident, but further stated that during the time that he was in any manner dealing with the affairs of the plaintiff, he acted with the requisite skill and without negligence.

The plaintiff was the driver of an ambulance on August 9, 2011, in Vanguard Drive, Athlone, when a black Mercedes Benz collided with the ambulance. 

The ambulance driver alleged that the collision was caused by the sole negligence of the Mercedes Benz driver through which he sustained serious bodily injuries as a result of the collision.

According to the plaintiff, he had suffered damages in the form of past medical expenses, future medical-related expenses, loss of earnings, and general damages. 

The plaintiff then approached the Cape Town law firm, giving it the mandate to execute the claim. 

However, in a rebuttal, the lawyer said that he had always acted upon instructions from the plaintiff and added that he could not take any further steps with regards to the plaintiff’s claim as the plaintiff, despite numerous attempts by the lawyer, did not contact him timeously or at all, for the defendant to proceed with issuing summons against the RAF.

During court proceedings, probing whether the lawyer had breached an agreement after he had received all documents, which included the power of attorney and details relating to the accident, the lawyer accepted that his mandate was to pursue the claim to its fullest and that he had not issued summons against the Fund within five years of the accident or at all.

High Court Acting Judge Frederick Sievers said: “Accordingly, the plaintiff has established that the defendant failed to prosecute his claim by way of legal proceedings (by issuing a summons) timeously and that this was a wrongful and negligent breach of the agreement and the defendant’s duty of care.”

It emerged, under cross-examination and by the lawyer’s concession, that he was able to deal with the four elements of the plaintiff’s claim quantum. He first conceded that he was in a position to estimate the past medical expenses and, similarly, the future medical expenses. 

The lawyer had the necessary information about the plaintiff, the accident, the offending vehicle, the drivers involved, as well as the injuries to proceed with the issuing of summons.

The judgment noted: “(The lawyer) acknowledged that the plaintiff was a layperson and had no knowledge of the regulations and time limits in respect of the Road Accident Fund, and as a result was relying on (his lawyer’s) guidance in that regard.

"(The lawyer) conceded that a reasonable attorney in his circumstances knowing that a claim was going to prescribe had a duty to ensure that the matter did not prescribe.”

Cape Times