Jack v Baleni and Another (1355/2013) [2016] ZAECMHC 28 (26 May 2016)

Jack v Baleni and Another (1355/2013) [2016] ZAECMHC 28 (26 May 2016)

The court found that the plaintiff had instructed the first defendant to pursue a claim against the Road Accident Fund and that the first defendant undertook steps consistent with accepting such a mandate, including obtaining the accident report and visiting the scene. However, the first defendant failed to exercise the degree of care, diligence, and skill expected of an average practitioner. He relied on an unclear police report and sketch plan, did not seek statements from witnesses or drivers, and failed to consider the legal requirement that even minimal negligence on the part of the insured driver could result in a successful claim. The advice given to the plaintiff was not based on...

Citation
[2016] ZAECMHC 28
Parties
Plaintiff: Nandipha Elter Jack; Defendant: Andile Baleni; Defendant: NS Nombambela Incorporated
Court
Eastern Cape High Court, Mthatha
Jurisdiction
South Africa
Judgment Date
26 May 2016
Case Number
1355/2013
Procedural Posture
Civil Trial / Liability Determination; Quantum Postponed
Outcome
The first and second defendants are found jointly and severally liable for the plaintiff's damages for loss of support arising from the collision.
Judges
N G Beshe
Legal Topics
Professional Negligence, Loss of Support, Road Accident Fund Claim, Prescription of Claims
Delict Civil Procedure Professional Negligence Loss of Support Road Accident Fund Claim Prescription of Claims

Case Brief

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Parties

Nandipha Elter Jack

Plaintiff

Andile Baleni

Defendant

NS Nombambela Incorporated

Defendant

Procedural Posture

Civil Trial / Liability Determination; Quantum Postponed

Legal Issues

  1. 1 Did the first defendant exercise the degree of care, diligence and skill expected of an average attorney in advising the plaintiff regarding her claim against the Road Accident Fund?
  2. 2 Did the first defendant's advice and conduct result in the plaintiff's claim prescribing, thereby causing her loss?
  3. 3 Was there a mandate accepted by the first defendant to pursue the Road Accident Fund claim on behalf of the plaintiff?

Ratio Decidendi

The court found that the plaintiff had instructed the first defendant to pursue a claim against the Road Accident Fund and that the first defendant undertook steps consistent with accepting such a mandate, including obtaining the accident report and visiting the scene. However, the first defendant failed to exercise the degree of care, diligence, and skill expected of an average practitioner. He relied on an unclear police report and sketch plan, did not seek statements from witnesses or drivers, and failed to consider the legal requirement that even minimal negligence on the part of the insured driver could result in a successful claim. The advice given to the plaintiff was not based on...

Court Disposition

The first and second defendants are found jointly and severally liable for the plaintiff's damages for loss of support arising from the collision.

Orders

  • The first and second defendants are jointly and severally liable for the damages suffered by the plaintiff for loss of support arising out of the collision which occurred on 11 February 2008.
  • The defendants are ordered to pay the costs of suit jointly and severally, the one paying the other to be absolved.