Duties of an attorney to prevent a claim from prescribing.

Duties of an attorney to prevent a claim from prescribing.

In MLENZANA V GOODRICK AND FRANKLIN INC. 2012 (2) SA 433 the plaintiff sued the defendant for damages in the amount of R493,574.00 on the basis of the defendant’s alleged negligence in failing to timeously lodge her claim for loss of support and funeral expenses against the Road Accident Fund (RAF). The plaintiff alleged that her damages arose out of a contract of mandate she concluded with the defendant to lodge her claim timeously but that it failed to carry out its mandate resulting in the plaintiff’s claim prescribing. The defendant denied that its failure to lodge the claim in time was as a result of negligence; it pleaded that such failure was the result of the plaintiff’s failure to provide certain information and to sign certain documents required to lodge the claim.

The court held that the plaintiff’s cause of action against the defendant depended on the following: whether the plaintiff’s claim would have been successful had it been lodged in time, whether a contract of mandate was in fact concluded, that such contract was breached and that the breach amounted to professional negligence on the part of the defendant.

Upon its evaluation of the evidence and corroboration of the facts the court determined that, on a balance of probabilities, the plaintiff’s claim would have been successful had it been lodged with the RAF. With regards to the contract of mandate, the court found that it was common cause that the defendant had been mandated to undertake the plaintiff’s case against the RAF. In terms of the contract of mandate, at the very least, the defendant had to do all that was necessary and practicable to ensure that the claim form was duly completed and delivered to the RAF before the prescription of the 3 year period within which the claim could be lodged. The defendant’s failure to lodge the claim was also not in dispute. Thus all that had to be established was whether the defendant’s failure to lodge the claim was as a result of negligence.

The defendant’s case was that it was unable to lodge the claim within the prescribed period due to the failure by both the plaintiff and the employer of her deceased husband to provide the documents and information requested by defendant. Upon its evaluation of the evidence in this regard the court came to the conclusion that the defendant had, prior to the prescription of the plaintiff’s claim, all the necessary documents required to lodge the claim. Despite the absence of an actuarial assessment, the court concluded that the amount of compensation to be claimed from the RAF could have been determined by way of the verbal information and the deceased’s payslips the plaintiff provided the defendant.

To determine the extent to which the information the defendant had prior to prescription of the claim would have sufficed to quantify the amount of compensation claimable from the RAF the court turned its attention to Section 24 of the Road Accident Fund Act, 56 of 1996. Upon its evaluation of precedents on the matter the court determined that the omission of information from the claim form, or the inaccuracy or inadequacy thereof, did not necessarily mean that there had been no substantial compliance with the Act. Accordingly, the court in casu was persuaded that the defendant had sufficient information to have substantially complied with the requirements set out in Section 24 to lodge the plaintiff’s claim against the RAF. The court held that the defendant, as knowledgeable practitioners, could have made rough calculations of the compensation claimable in order to lodge the claim in time. Any inaccuracy could have been addressed afterwards with the instruction to an actuary to expertly assess the plaintiff’s claim. Doing so would have allowed the defendant to vary the original amount even after the expiry date of the prescribed period for lodgement.

The court concluded that the defendant, more specifically the attorney who was in charge of overseeing the lodging of the claim on behalf of the plaintiff, knew and could reasonably have ascertained the information required to complete the claim in order to effect its lodging within the prescribed period. It held that the defendant’s conduct was “chronicled by hopeless acts of procrastination and utter neglect” and that a prudent, skilful and knowledgeable attorney would have dealt with the matter in an entirely different manner.” The court subsequently held that the plaintiff did, on a balance of probabilities, establish all the elements for her cause of action against the defendant.

The court set a standard for the amount of effort an attorney ought to give towards meeting prescription deadlines when operating under a contract of mandate. This, inter alia, includes the following: an attorney must take all reasonable steps within his or her power to acquire the information necessary relating to the matter and must derive all the necessary information he or she can from the documents that are available if documentation is lacking, an attorney must have knowledge of the aspect of the law associated with the mandate given and if such experience and knowledge is lacking then the attorney must solicit help, an attorney should  be aware of a client’s specific circumstances and the difficulties this can cause in communicating with him or her, in this case the client was a resident of an informal settlement and the court held it was negligent of the defendant not to anticipate the difficulties such a person face with respect to, inter alia, postal delivery. The court did not approve of the defendant’s “waiting” on the plaintiff to provide the information the defendant required to lodge the claim in time. “There comes a time when a diligent attorney has to leave the comfort zone of his or her air-conditioned office and venture out to do some fieldwork in order to safeguard the interests of the client.” In this specific case the court referred to, for example, obtaining birth certificates from the Department of Home Affairs by an attorney himself or herself. Anything less than committed pro-active efforts by an attorney to acquire the information required to ensure that a claim does not prescribe will render the attorney negligent and liable for damages.

The defendant brought an application for leave to appeal more than a year later but the application was dismissed.

By Mignon Hauman
Candidate Attorney

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