During August 2011 PAS Attorneys of Ermelo approached Leander Opperman to take over a case of professional negligence against the previous attorneys of one of his clients. The attorney in question allowed claims against the RAF to prescribe.
Our clients were Mrs Middel (previously Mrs Combrink) the spouse of a deceased person ( who was killed in an MVA in May 2000) and JP Combrink, the deceased's eldest son.
Briefly, the facts of the case were as follows:
1. On 5 May 2000, Mrs Middel's deceased husband, Mr Combrink ("the deceased") was involved in a motor vehicle collision, wherein he collided with a timber log situated in the middle of the road, which then caused him to lose control of his motor vehicle and overturn.
2. Our clients approached their attorney to institute a claim for loss of support, on behalf of the deceased's spouse and the three children, two of which were minors, against the RAF.
3. Upon lodging the claim with the RAF, the attorney received a letter from the RAF repudiating the claim based on the argument that the deceased's own negligence caused the collision.The attorney lodged claims with the RAF in time, but failed to timeously have summons served on the RAF. As a result, all four claims for loss of support prescribed.
4. We took over the action against the attorney for professional negligence shortly before the trial a the end of August 2011.
5. At the same time PAS Attorneys, who were acting on behalf of Mrs Middel's two minor children, instituted a claim against the attorney based on the grounds of professional negligence as well as a claim against the RAF. The RAF filed a special plea raising the allegation that the RAF was not liable for the two minors' claims as both of the minors' claims had prescribed, based on the fact that this was an unidentified claim.
6. By January 2013 all of the above matters had been consolidated and proceeded to trial on 21 May 2013. Melissa Croft assisted Leander in preparing the matter for trial.
7. The issue of merits was hotly contested and certainly not without risk.
8. The problems that we faced going to trial on merits were briefly that:
8.1 The driver of a motor vehicle travelling in front of the deceased's vehicle confirmed in his SAPS statement that he saw the timber log lying in the middle of the road and was able to avoid the collision. He also confirmed that he attempted to contact the deceased to warn him about the log, to no avail.
8.2 The front seat passenger in the deceased's motor vehicle, Mr Prinsloo, also confirmed in his SAPS statement that he saw the timber log in the middle of the road and tried to warn the deceased but could not do so in time.
8.3 The onus to prove that the timber log which was present in the middle of the road, due to the negligence of an unidentified driver, who failed to secure the timber log to his motor vehicle, thereby causing the deceased to collide with the log, was on our clients.
9. The court nevertheless found, that the only reasonable inference to be drawn, in the absence of any objective facts to the contrary, was that the timber log fell off an unidentified truck, due to the sole negligence of the unidentified driver. Prior to judgement the insurers for the attorney in question also offered to settle the claims against their client for a substantial sum. The clients instructed us to settle with their previous attorney and the capital is expected at the end of June.
10. The matter is proceeding against the RAF on a constitutional argument, which we are not involved in.
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