Strimer v Road Accident Fund (32194/04) [2007] ZAGPHC 227 (5 October 2007)

Strimer v Road Accident Fund (32194/04) [2007] ZAGPHC 227 (5 October 2007)

The court found that the plaintiff had, after thorough consultation with her legal representatives, consciously and deliberately abandoned her claim for past and future loss of earning and earning capacity. The abandonment was valid and constituted a waiver of rights. The subsequent application to amend the particulars of claim to revive the abandoned claim was not supported by any medical evidence and was not accompanied by a satisfactory explanation for the delay or the absence of expert opinion. The court held that the amendment would substantially prejudice the defendant by dramatically increasing the quantum of the claim and introducing a new cause of action. The plaintiff failed to...

Citation
[2007] ZAGPHC 227
Parties
Plaintiff: Strimer D M; Defendant: Road Accident Fund
Court
High Courts - Gauteng
Jurisdiction
South Africa
Judgment Date
5 October 2007
Case Number
32194/04
Procedural Posture
Amendment Application / Application for Leave to Amend Particulars of Claim
Outcome
Application for amendment dismissed with costs, including costs of senior counsel.
Judges
Mavundla
Legal Topics
Amendment of Pleadings, Waiver of Rights, Road Accident Fund Claims, Prejudice in Amendment, Quantum of Damages
Civil Procedure Delict Amendment of Pleadings Waiver of Rights Road Accident Fund Claims Prejudice in Amendment Quantum of Damages

Case Brief

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Parties

Strimer D M

Plaintiff

Road Accident Fund

Defendant

Procedural Posture

Amendment Application / Application for Leave to Amend Particulars of Claim

Legal Issues

  1. 1 Whether a plaintiff who has abandoned a claim for past and future loss of earning and earning capacity may revive such claim by further amendment.
  2. 2 Whether the abandonment of the claim constituted a waiver of rights.
  3. 3 Whether the proposed amendment would prejudice the defendant.

Ratio Decidendi

The court found that the plaintiff had, after thorough consultation with her legal representatives, consciously and deliberately abandoned her claim for past and future loss of earning and earning capacity. The abandonment was valid and constituted a waiver of rights. The subsequent application to amend the particulars of claim to revive the abandoned claim was not supported by any medical evidence and was not accompanied by a satisfactory explanation for the delay or the absence of expert opinion. The court held that the amendment would substantially prejudice the defendant by dramatically increasing the quantum of the claim and introducing a new cause of action. The plaintiff failed to...

Court Disposition

Application for amendment dismissed with costs, including costs of senior counsel.

Orders

  • The application for amendment is dismissed.
  • The applicant is ordered to pay the costs of the application, including the costs of senior counsel.