Erasmus Ferreira & Ackermann and Others v Francis (311/08) [2009] ZASCA 54; 2010 (2) SA 228 (SCA) ; [2009] 3 All SA 500 (SCA) (27 May 2009)

Erasmus Ferreira & Ackermann and Others v Francis (311/08) [2009] ZASCA 54; 2010 (2) SA 228 (SCA) ; [2009] 3 All SA 500 (SCA) (27 May 2009)

The Supreme Court of Appeal held that section 1(1) of the Assessment of Damages Act does not apply to a professional negligence claim against attorneys for allowing a loss of support claim to prescribe. The plaintiff's action against the attorneys is conceptually different from a direct claim for loss of support. However, the court found that the insurance benefit received by the plaintiff is a collateral benefit and, based on fairness and policy considerations, should not be deducted from the damages awarded against the attorneys. The defendants are liable for the full amount the plaintiff would have received from the Road Accident Fund had her claim not prescribed, and cannot reduce...

Citation
[2009] ZASCA 54
Parties
Appellant: Erasmus Ferreira & Ackermann; Appellant: Chris Ferreira; Appellant: Hendrik Ackermann; Respondent: Kerry-Lynn Francis
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
27 May 2009
Case Number
311/08
Procedural Posture
Civil Appeal / Appeal From High Court, Pretoria
Outcome
Appeal dismissed. The defendants are ordered to pay the plaintiff R850,000 with interest and costs.
Judges
Streicher, Farlam, Nugent, Cloete, Cachalia
Legal Topics
Professional Negligence, Loss of Support, Collateral Benefits, Assessment of Damages Act, Prescription of Claims
Delict Civil Procedure Professional Negligence Loss of Support Collateral Benefits Assessment of Damages Act Prescription of Claims

Case Brief

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Parties

Erasmus Ferreira & Ackermann

Appellant

Chris Ferreira

Appellant

Hendrik Ackermann

Appellant

Kerry-Lynn Francis

Respondent

Procedural Posture

Civil Appeal / Appeal From High Court, Pretoria

Legal Issues

  1. 1 Whether the defendants, as attorneys, are 'third parties' under the insurance policy and thus subject to indemnification obligations.
  2. 2 Whether the plaintiff's claim against the defendants should be reduced by the amount received from the insurance policy.
  3. 3 Whether section 1(1) of the Assessment of Damages Act 9 of 1969 applies to a professional negligence claim against attorneys for loss of support.

Ratio Decidendi

The Supreme Court of Appeal held that section 1(1) of the Assessment of Damages Act does not apply to a professional negligence claim against attorneys for allowing a loss of support claim to prescribe. The plaintiff's action against the attorneys is conceptually different from a direct claim for loss of support. However, the court found that the insurance benefit received by the plaintiff is a collateral benefit and, based on fairness and policy considerations, should not be deducted from the damages awarded against the attorneys. The defendants are liable for the full amount the plaintiff would have received from the Road Accident Fund had her claim not prescribed, and cannot reduce...

Court Disposition

Appeal dismissed. The defendants are ordered to pay the plaintiff R850,000 with interest and costs.

Orders

  • The appeal is dismissed with costs.
  • The order of the court below is amended to include the agreed provision for interest: Judgment is entered for the plaintiff against the defendants, jointly and severally, one paying the others to be absolved, in the amount of R850,000 (eight hundred and fifty thousand rand) with interest at the rate of 15.5% per...