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IN THE HIGH COURT OF SOUTH AFRICA

CAPE OF GOOD HOPE PROVINCIAL DIVISION

CASE NO : 4389/2004

In the matter between :

PAUL JOHN DANIEL JETHRO N.O. Plaintiff

and

SCHREUDER ATTORNEYS Defendant

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JUDGMENT DELIVERED THIS 9^TH DAY OF JUNE, 2005

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FOXCROFT, J : By order of this Court dated 17 March 2005, the issues set forth in paragraph 6 of the Statement of Issues for Determination dated 1 February 2005 were required to be first determined in this matter.

Paragraph 6 reads as follows :

“6.1 Whether, had the Defendant instituted action against the Multilateral Motor Vehicle Accidents Fund on behalf of the patient on the basis of the facts pleaded by the Plaintiff in paragraphs 4 and 5 (as amended) of the particulars of claim, claiming her full damages, such claim would probably have succeeded in the absence of a challenge to the validity of regulation 3(1)(a)(v);

2. Whether an attorney in the position of the Defendant would have been negligent in not advising his client to pursue such claim, assuming he had knowledge of the facts set out in paragraphs 4 and 5 (as amended) of the particulars of claim.”

Plaintiff sued the Defendant, a firm of attorneys, for damages allegedly flowing from the negligence of the Defendant in failing to file timeously and prosecute a claim

“teen die Padongelukkefonds ..… ingevolge die Multilaterale Motorvoertuig Ongelukkefondswet 93 van 1989 (‘die Wet’). Gelees met die gepaardgaande en relevante regulasies daarvan”.

Plaintiff is the duly appointed curator ad litem to Susan Aggenbag (‘the patient’) who was injured in a motor accident which occurred on 20 February 1994 near Vredendal in the Western Cape. Her injuries caused unconsciousness and have resulted in her being in a persistent vegetative state since the accident. The applicable legislation is the ‘now repealed’ Multilateral Motor Vehicle Accident Fund Act No 93 of 1989 (‘the MMF Act).

Plaintiff claims that the patient was entitled to compensation for her full damages from the ‘Padongelukkefonds’ (‘ the Fund’] and that if a claim had been timeously submitted by Defendant, it would have succeeded. It was also alleged that that claim has now prescribed.

As to the question of prescription, Defendant pleaded that as a result of the decision of the Supreme Court of Appeal in MOLOI AND OTHERS v ROAD ACCIDENT FUND, 2001(3) SA 547 the provisions of the Prescription Act No 68 of 1969 have not been ousted and the patient’s claim had not prescribed at the time when Defendant owed a duty to its client to institute a claim.

The prescription point does not, of course, arise in the present determination.

The issue requiring to be first determined relates to the interpretation of Regulation 3(1)(a)(v) of the Regulations promulgated under Section 6 of the MMF Act. The Regulation reads as follows :

“(a) The MMF shall not incur any liability unless

5. the unidentified motor vehicle (including anything on, in or attached to it) came into physical contact with the injured or deceased person or with any other person, vehicle, conveyance or any other object or objects which directly or indirectly caused or contributed to the injury or death.”

It is alleged in paragraph 5 of the particulars of claim that the collision was caused in part by the negligence of the driver of an unidentified motor vehicle which caused dust and gravel to be flung in the air, which in turn struck the windscreen of the vehicle in which the patient was travelling. At the time when this injury to the patient occurred, the case of PADONGELUKKEFONDS (VOORHEEN MULTILATERALE MOTORVOERTUIG ONGELUKKEFONDS) v PRINSLOO, 1999(3) SA 569 (SCA) had not yet been heard. In that case, the provisions of the Regulation in question in this case were declared to be ultra vires, but as Mr Mitchell, who appeared for Defendant, correctly submitted, claims against the Fund in respect of injuries caused by the driving of vehicles where neither the driver nor owner could be identified, were at the time of the events which led to the injuries in this case made subject to regulations promulgated under section 6 of the Act. One of those regulations was the one with which this case is concerned. He also submitted, correctly in my view, that it must be accepted for purposes of the determination of the issue in this case that the accident occurred in the circumstances set forth in the particulars of claim. It is correct, as Mr Mitchell submitted, that it was not contended by Plaintiff for the purposes of this aspect of the action that the Defendant attorneys ought to have challenged the validity of the regulation.

Plaintiff ’s case is that the circumstances of the accident fell within the requirement of the Regulation as it had been construed at the time. Plaintiff asserts that the circumstances did indeed constitute physical contact within the meaning of the said Regulation. The question for decision is indeed, therefore, whether gravel and dust striking the windscreen of the vehicle in which the patient was being conveyed, constituted physical contact within the meaning of that term in the Regulation. Mr Mitchell submitted that the purpose of requiring physical contact was to militate against the possibility of fraudulent claims. Physical contact would normally provide tangible evidence which would enable the Fund to satisfy itself of a valid claim, so the argument ran. He submitted that the provisions of the regulations will be narrowly interpreted, as was done for example in KHUMALO v MULTILATERAL MOTOR VEHICLE ACCIDENTS FUND, 1997(4) SA 384 (N). He added that the concept of physical contact should therefore not be extended to something which creates no physical evidence of its existence, because the wider interpretation would facilitate the possibility of fraudulent claims rather than reduce it.

KHUMALO’s case was very different. There BROOME, DJP had to deal with the injuries sustained by a plaintiff when the Kombi taxi in which he was travelling left the road and hit a tree without any fault on the part of the driver. Shots had been fired at the driver from a Cressida motor car following the Kombi and a bullet had struck the taxi driver on the back of his head, causing him to lose control of the taxi. It was claimed that the Fund was liable because the occurrence had been caused “by or arose out of the driving of the Cressida and was due to the negligence or other unlawful act of its driver”.

That case is, in my view, of no assistance in the present matter. In dealing with the restriction relating to physical contact as a means of preventing spurious claims, BROOME, DJP had already said that

“No question arises of the Cressida coming into physical contact with the plaintiff or any other persons or objects mentioned in reg 3(1)(a)(v)”.

The bullet which had been fired at the driver who had lost control were the only objects which could have caused any physical contact. The question in that case was whether those bullets could be included as being “on, in or attached to” the taxi.

The situation in the present case is wholly removed from that in KHUMALO’s case, since it is pleaded in the present matter that the driving of the unidentified vehicle caused dust and gravel to be thrown up onto the windscreen of the car in which the patient was travelling. Clearly, if proved, that would amount to contact with objects which contributed to her injuries.

Mr Mitchell submitted that an attorney in the position of Defendant in 1994 would not have been negligent if he had advised his client on the facts available that no unlimited claim against the Fund could be instituted due to the lack of physical contact with the unidentified vehicle, or anything in or on that vehicle.

Mr Potgieter, who appeared for Plaintiff together with Mr Jethro, submitted that there must always be a causal connection between the driving of the vehicle and the injury. The driving of the unidentified vehicle had contributed to the injuries sustained in this case. It was at least something which had occurred ‘arising out of’, if not ‘caused by’ the driving of the vehicle, and he referred to authority for the proposition that these two phrases are not synonymous. Mr Potgieter submitted that the dust and gravel which had been ejected, on the pleadings, by the unidentified vehicle, and which had struck the windscreen of the vehicle in which the patient was traveling, obstructed the view of the driver and caused the vehicle to leave the road and to overturn. The gravel and dust had therefore clearly contributed to the injuries, and Mr Potgieter closed his argument by submitting that on the issue of legal causation it could not be seriously suggested in these circumstances that the injuries of the patient were too remote.

Mr Mitchell did not join issue with his argument in regard to the standard test in respect of the necessary skill to be exercised by a professional practitioner.

It has often been said that, from the point of view of principle and policy, legislation dealing with Motor Vehicle Accident Funds should be interpreted to give the widest possible protection to third parties. In relation to the extension of liability to unidentified motor vehicles, SMALBERGER, JA said the following in PADONGELUKKEFONDS v PRINSLOO, 1999(3) SA 569 SCA at 574. He was there speaking of section 40 of the ‘Ooreenkoms ter stigting van die MMF ’. At 573J he said the following :

“Artikel 40 is baie wyd in omvang. Dit dek alle gevalle van verlies of skade soos beoog wat gely is as gevolg van die nalatige bestuur van 'n voertuig op enige plek in die regsgebied van die lede van die MMF, ongeag of die bestuurder of eienaar van die betrokke voertuig geϊdentifiseer kan word aldan nie. [SA EAGLE INSURANCE CO LIMITED v PRETORIUS, 1998(2) SA 656 HHA op 660H-661B). Dit skep dus aanspreeklikheid selfs in gevalle waar daar andersins weens die onvermoё van 'n eiser om 'n verweerder te identifiseer geen praktiese remedie sou wees nie. Die artikel is dus volkome in ooreenstemming met wat nog altyd beskou is as die algemene oogmerk van die Wetgewer in wetgewing van hierdie aard, naamlik om die wydste moontlike beskerming aan persone te verleen wat verlies of skade gely het soos in die artikel beoog. … Die artikel stel geen vereiste van fisiese kontak as 'n voorwaarde van aanspreeklikheid nie.”

That view, of course, led to the decision that the regulation was not in step with the Act or the Agreement and the ultimate finding that it was ultra vires. Of course, one has to treat the present matter in isolation in a sense, since one has to assume that this later thinking did not apply to the situation when the damage in the present case occurred.

The argument has an ‘Alice in Wonderland’ quality, since the regulation with which this judgment is concerned no longer exists. One is asked to ignore that fact and consider the possible liability of an attorney who had to decide whether the facts of this case were such as to entitle his client to bring a claim for damages flowing from injuries sustained by her.

On the pleadings as they stand, there was, in my view, a reasonable prospect that the Plaintiff would have recovered damages. There is an allegation that the unidentified motor vehicle came into contact with objects (‘stof en klippies’) which contributed to the injuries sustained.

The restriction imposed in the regulation to guard against the opening of a feared floodgate to fraudulent claims, was in any event met in this case. Unlike the spurious claims suggested by BROOME, DJP above, this case contains an allegation of contact with physical objects.

Evidence is, of course, the best test of possible fraud, and I cannot imagine that a Court would not have allowed this claim to proceed.

There is also, in my view, no basis for extending the legal requirement of physical contact to a situation where there is also physical evidence of contact. That was not what the regulation said (i.e. before it was declared unconstitutional). It is a factual question best solved by evidence. An attorney should not decide such a question in advance, so to speak, and then reach a conclusion that the claim would fail even before any evidence was heard.

Remembering Mr Mitchell’s submission that it must be accepted for purposes of the determination of this issue that the accident occurred in the circumstances set forth in the particulars of claim, it is my view that Defendant was negligent in not instituting an unlimited claim on behalf of the patient.

I accordingly make the following order.

1. The issue referred to this Court for determination is decided in respect of both issues 6.1 and 6.2 of the ‘Statement of Issues for Determination in terms of Rule 33(4)’ in Plaintiff’s favour.

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

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J G FOXCROFT

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