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IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

 

(1)     REPORTABLE: YES/NO

(2)     OF INTEREST TO OTHER JUDGES: YES/NO

(3)      REVISED.

 

CASE NO:19714/2014

12/12/2019

 

In the matter between:

 

FREDERICK WALTER FROST                                                                      PLAINTIFF

 

And

 

GERHARD VON WIELLIGH ATTORNEYS                                                  DEFENDANT

JUDGMENT

 

STRIJDOM AJ

INTRODUCTION

[1]          The Plaintiff in this action claims compensation from the defendant an attorney, for damages, he has and will in future suffer arising from two incidents.

[2]          The first being that the defendant negligently failed to lodge a claim timeously on behalf of the plaintiff with the Road Accident Fund (hereinafter called the "RAF"), causing whatever claim the plaintiff may have against the RAF to become prescribed arising from a motor vehicle accident which occurred on 12 August 2014.

[3]          The second being that the motor vehicle accident which occurred on 12 August 2014 was caused by the negligence of the unidentified insured driver.

 

The Common Cause Facts.

[4]          The following facts are common cause between the parties:

4.1       Defendant admitted that an accident occurred on 12 August 2014 on the road between Newcastle and Lady Smith, the plaintiff being the driver of a freightliner truck and trailer.

4.2       The defendant failed to institute a claim against the RAF and that any claim that the plaintiff might have had against the RAF, has prescribed.

4.3       The defendant conceded its negligence in not instituting a claim against the RAF.

4.4       The plaintiff had lodged a claim with the Worksmans' Compensation Commissioner as the injuries he sustained were in the course and scope of his employment and that such a claim was approved under reference number A8/106354.

 

The Issues for Determination.

[5]          The disputes between the parties are as follows:

5.1        If the accident was caused by the negligence of the unidentified insured driver;

5.2        The harm suffered by the plaintiff as a result of the breach of mandate by the defendant;

5.3        The causal link between any harm suffered by the plaintiff and the negligence of the defendant.

 

The merits.

[6]          As recorded in a pre-trial between the parties on 5 November 2019, the parties deferred as to the exact terms of a separation of merits and quantum which was previously agreed to in principle. The plaintiff alleged that he only had to prove the mechanism of the accident in order to succeed in proving liability.

[7]          On behalf of the defendant it was contended that the plaintiff had to prove all aspects of liability, including the harm and the casual link between the harm and the breach of mandate.

[8]          At the commencement of the trial the court ordered a separation of merits and quantum and stated that liability would include the causal link disputed.

 

The Plaintiffs' case.

[9]          The plaintiff testified and closed his case. Defendant closed his case without calling witnesses.

[10]       The evidence of the plaintiff can be summarized as follows:

10.1         The plaintiff testified that on 12 August 2018 he was the driver of a freightliner truck with two v shaped side tipper trailers. He was travelling on the road between Newcastle and Lady Smith. It was a tarred road with one lane in each direction. The road was elevated from its surroundings by approximately1 meter. Adjacent to the tarred road surface was a stretch of approximately 1,5 to 2 meters wide.

10.2         Ahead of him the road made a 30 degree turn to his right. The lanes were separated by a solid white line, prohibiting vehicles from moving into the oncoming lane. The lane is approximately 2,5 meters wide and the truck is approximately 2,4 meters wide.

10.3         He testified that he was travelling at 80 km/h and there were no vehicles traveling in front of him in his direction. He notified two approaching vehicles coming from his opposite direction. The vehicle in front was a sedan and behind the sedan was a quantum minibus. The minibus proceeded to move into his lane and to overtake the sedan ahead of him. In order to avoid a collision with the minibus he applied his brakes and moved to his left to create space for the minibus to pass him on his right. The collision was thereby avoided but he loss control over the truck when he want to move back on the road and the truck overturned and landed on its left side.

10.4         Plaintiff further testified that he alighted from the truck by climbing out of the window on the driver side. He walked to the back of the trailer of which the rear portion was on the tarred road and stood there to warn traffic. The two vehicles did not stop. A traffic officer arrived and enquired as to whether he sustained injuries, plaintiff responded that he was fine. Plaintiff telephonically contacted his employer and they arranged that plaintiff be picked up and be taken to the depot.

10.5         He testified that he went to the hospital at 20h00 the same day but could not be treated as he did not have medical aid. He returned to the hospital on 13 August 2008 where he was examined and x-rays were taken but no MRI scans as it was too expensive. He was given medication and was discharged. A claim was lodged with the Compensation Commissioner and he admitted that the Commissioner had paid his medical expenses as set out in a letter directed to the Commissioner to the RAF.

 

[11]      Counsel for the plaintiff has submitted that the only version of the accident before court is that of the plaintiff and his version was not substantially contested by defendant. It was further submitted that the accident was caused by the sole negligence of the unidentified insured driver and that the plaintiff sustained bodily injuries as a direct consequence of the accident.

[12]      It was submitted by counsel for the defendant that the plaintiff has failed to discharge the onus of proving, firstly harm, and secondly a causal link between the alleged harm and the breach by the defendant.

 

Legal Principles.

[13]      It is trite law that the liability of an attorney to his or her client for damages resulting from that attorneys negligence is on a breach of the contract between the parties.[1]

[14]       In order to succeed in a claim for damages the client must meet the following threshold requirements;[2]

 

"The client must allege and prove:

(a)          The mandate;

(b)          Breach of the mandate;

(c)          Negligence in the sense described above (VIZ failure to exercise the required skill knowledge and dilligence expected of an average attorney);

(d)          Damages, which may require proof of the likelihood of success in the aborted proceedings. See Dhooma v Mehta."[3]

(e)          That damages were within the contemplation of the parties when the contract was concluded. See Bruce NO v Berman."[4]

 

[15]       Considering the nature of the separation granted by this court, the plaintiff had to show, on a balance of probability, that it would most likely have succeeded in proving liability against the Road Accident Fund.

[16]       In MS v Road Accident Fund[5] I it was stated that

"An admission as to the merits or liability should not be construed as an admission that the negligence of the driver caused the loss. Such an admission can mean no more than an admission that the insured driver caused the accident. The former construction will lead to a failure to prove causation of loss."

 

[17]       In paragraph 11 the learned judge stated the following:

"In cases of claims for personal injury the plaintiff must show that the injuries were sustained in the accident and that these injuries have had certain effects on the person of the claimant. Once these effects are established, the court can move to determine how such effects translate into loss."

 

Evaluation of the evidence.

[18]       In his evidence in chief the plaintiff only referred to back pain. In paragraph 4 of the particulars of claim the plaintiff alleges that he sustained lower back pain on the left side, neck pain on the left as well pain in both legs. There is no evidence explaining the impact of such pain on the plaintiff.

[19]       There is no evidence to show that the pain allegedly suffered by the plaintiff is truncated the plaintiff's ability to perform his work or that the pain requires further future medical treatment or intervention.

[20]       During cross -examination it was pointed out to the plaintiff that the clinical records indicated a diagnosis of bruising to his right posterior thoracic muscles. It does not explain the back pain. It was further pointed out that the occupational injury report completed by his employer only made reference to multiple minor cuts and bruises, which again does not explain the alleged back pain. The plaintiff was also referred to the results of a radiological investigation performed on 13 August 2008, which showed his spine to be normal.

[21]       It was further pointed out to the plaintiff in cross-examination that the Compensation Commissioner accepted liability to compensate him as the injury sustained by himself was sustained on duty. This was confirmed in a letter on behalf of the Compensation Commissioner dated 1 July 2014 which letter indicated payment of past medical expenses as well as payment to plaintiff for a period of disability. That letter further stated that the plaintiffs' degree of permanent disablement was assessed at 0%.

[22]       It is trite that with effect from August 2008 any claimant against the Road Accident Fund only qualified to be awarded for general damages insofar as such a claimant sustained a serious injury in terms of regulations 3 of the Act. The plaintiff would only have qualified to be awarded general damages if he therefore sustained a serious injury.

[23]       On a conspectus of all the evidence before me the plaintiff has failed to show that as a result of the accident he sustained serious injury to qualify for general damages, that any injury that he might have sustained will have a negative impact on his future earnings capacity or truncate his earnings and that he will have to incur future medical costs.

[24]       In my view the plaintiff has failed to discharge the onus on a balance of probabilities to prove that the Road Accident Fund would have been liable to compensate him as such.

[25]       Although there is no express provision in Rule 39 of the Uniform Rules of Court for an order for absolution from the instance at the conclusion of the whole case, the practice to grant absolution when a plaintiff has not established the facts in support of his case to the satisfaction of the court, has been extended to cases in which evidence for the defendant has also be given.[6]

[26]       In my view there is no evidence upon which the court ought to give judgment in favour of the Plaintiff.

[27]       In the result the following order is made.

27.1     Absolution for the instance is granted.

27.2     Plaintiff is ordered to pay the defendants' costs.

 

 

 

JJ STRIJDOM

ACTING JUDGE OF THE HIGH COURT

 

 

 

Matter heard on:                            25 NOVEMBER 2019

Judgment delivered:                    12 DESEMBER 2019

Counsel for Applicants:              ATTORNEY AS MYBURGH

Attorneys for Applicants:           LEON JJ VAN RENSBURG ATTORNEY

Counsel for respondents:           ADV S MYBURGH

Attorneys for respondents:        MOTHLE JOOMA SABOHIA INC

 

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