Jethro NO v Schreuder Attorneys (4389/04) [2005] ZAWCHC 40 (9 June 2005)

Jethro NO v Schreuder Attorneys (4389/04) [2005] ZAWCHC 40 (9 June 2005)

The court found that, on the pleaded facts, there was a reasonable prospect that the Plaintiff would have recovered damages from the Fund. The allegation that the unidentified motor vehicle caused dust and gravel to strike the windscreen of the vehicle in which the patient was travelling constituted physical contact within the meaning of Regulation 3(1)(a)(v). The restriction in the regulation, intended to prevent fraudulent claims, was satisfied by the presence of physical evidence of contact. The court held that an attorney should not pre-emptively decide that such a claim would fail without allowing evidence to be heard. Therefore, the Defendant was negligent in not instituting an...

Citation
[2005] ZAWCHC 40
Parties
Plaintiff: Paul John Daniel Jethro N.O.; Defendant: Schreuder Attorneys
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
9 June 2005
Case Number
4389/04
Procedural Posture
Civil Trial / Determination of Preliminary Issues Under Rule 33(4)
Outcome
The issues referred for determination are decided in favour of the Plaintiff on both issues 6.1 and 6.2.
Judges
Foxcroft
Legal Topics
Professional Negligence, Prescription, Motor Vehicle Accident Fund, Physical Contact Requirement
Delict Civil Procedure Professional Negligence Prescription Motor Vehicle Accident Fund Physical Contact Requirement

Case Brief

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Parties

Paul John Daniel Jethro N.O.

Plaintiff

Schreuder Attorneys

Defendant

Procedural Posture

Civil Trial / Determination of Preliminary Issues Under Rule 33(4)

Legal Issues

  1. 1 Whether a claim against the Multilateral Motor Vehicle Accidents Fund would probably have succeeded if instituted on the pleaded facts.
  2. 2 Whether an attorney in the position of the Defendant would have been negligent in not advising the client to pursue such claim, given the facts.

Ratio Decidendi

The court found that, on the pleaded facts, there was a reasonable prospect that the Plaintiff would have recovered damages from the Fund. The allegation that the unidentified motor vehicle caused dust and gravel to strike the windscreen of the vehicle in which the patient was travelling constituted physical contact within the meaning of Regulation 3(1)(a)(v). The restriction in the regulation, intended to prevent fraudulent claims, was satisfied by the presence of physical evidence of contact. The court held that an attorney should not pre-emptively decide that such a claim would fail without allowing evidence to be heard. Therefore, the Defendant was negligent in not instituting an...

Court Disposition

The issues referred for determination are decided in favour of the Plaintiff on both issues 6.1 and 6.2.

Orders

  • Defendant is to pay the costs of Plaintiff's application on a party and party basis.