Ramonyai v L P Molope Attorneys

• Jurisdiction: South Africa
• Judge: Mokgoatlheng J
• Judgment Date: 27 February 2014
• Docket Number: 2010/29310
• Court: South Gauteng High Court, Johannesburg
• Hearing Date: 21 February 2014
• Citation: 2014 JDR 0772 (GSJ)

Mokgoatlheng J:

(1)

The plaintiff has instituted action premised on the defendant's breach of contract in having caused the plaintiff's claim for damages, which arose from the injury and subsequent amputation of her left leg on 4 March 2006 to become prescribed.

THE PLEADINGS

(2)

The plaintiff in her particulars of claim amplified by viva-voce evidence alleges that her claim became prescribed in the defendant's care due to his failure to timeously issue and serve summons against the Soweto Supermarket CC and other entities whose negligent conducted rendered them liable for the damages she suffered as a result of her injury and its sequelae.

(3)

Further the plaintiff alleges that "pursuant to the terms of the defendant's mandate as an attorney specializing in personal injury claims, he was obliged to competently prosecute her claim with reasonable care, skill, and diligence."

(4)

The defendant admits that "it was an express, alternatively, an implied or tacit term of his mandate to:

4.1

investigate the circumstances relating to the said incident; and

2014 JDR 0772 p3

Mokgoatlheng J

4.2

do all that is necessary to finalise the claim.

(my emphasis)

(5)

Further the defendant pleaded that the plaintiff pertinently instructed him to institute action for damages on her behalf only against the Soweto Supermarket CC, consequently, his mandate was circumscribed and limited only to recovering damages exclusively against the latter.

THE APPLICATION FOR THE AMENDMENT OF THE PARTICULARS OF CLAIM

(6)

The plaintiff's counsel launched an application to amend the particulars of claim to add the allegation that: "the plaintiff instructed the defendant to recover damages from the Soweto Supermarket CC and/or Baragwanath Hospital and its employees or any other third party liable for her damages."

(7)

The amendment was premised on Dr Schnaid's addendum to his medico-legal-report wherein he stated that the cause of the amputation of the plaintiff's left leg, was attributable to the negligence of Baragwanath Hospital's employees in having delayed to promptly diagnose and treat the plaintiff's popliteal artery injury.

(8)

The application was opposed on the basis that it was launched after the plaintiff had testified, further that in adducing evidence the plaintiff did not pertinently testify that she had instructed the defendant to recover damages from Baragwanath Hospital and its employees. The defendant's counsel argued that if the amendment is granted, it would introduce a new cause of action which would prejudice the defendant.

2014 JDR 0772 p4

Mokgoatlheng J

(9)

THE PRINCIPLES GOVERNING THE GRANTING OF AN AMENDMENT:

"8.1…The general rule is that an amendment of a notice of motion, as in the case of a summons or pleading in an action, will always be allowed unless, the application to amend is mala fide or unless such amendment would cause an injustice to the other side which cannot be compensated by an order for costs, or in other words, unless the parties cannot be put back for the purposes of justice in the same position as they were when the notice of motion, which it is sought to amend was filed" Devonia Shipping Ltd v MV Luis (Yeoman Shipping Co Ltd Intervening) 1994 (2) SA 363 at 369 F-I. "The power of the Court to allow material amendments is accordingly, limited only by considerations of prejudice or injustice to the opponent." See Erasmus Superior Courts Practice at B1-179.

(10)

It is trite that if an application for an amendment is bona fide it may be granted. In principle there is no objection to a new cause of action or defence being added by way of an amendment, even though it has the effect of changing the character of the action and necessitating the reopening of the case for fresh evidence to be led, where that is necessary to determine the real issue between the parties. See Myers v Abramson 1951 (3) SA 438 (C) at 449 H-450A; Trans-Drakensburg Bank Limited v Combined Engineering (Pty) Limited 1967 (3) SA 632 (D) at 642H-643A; Morgan and Ramsay v Cornelius and Hollis [1910] 31 NPD 262 at 265; Greyling v Nieuwoudt 1951 (1) SA 88 (O).

(11)

In the absence of prejudice to the other party, leave to amend may be granted… "at any stage, however negligent or careless the mistake

2014 JDR 0772 p5

Mokgoatlheng J

or omission may have been, and however late may be the application for amendment." See Krogman v Van Reenen 1926 (OPD) 191 at 193; SA Steel Equipment Co (Pty) Limited v Lurelk (Pty) Limited 1951 (4) SA 167 (T) at 175D; Mabaso and Others v Minister of Police and Another 1980 (4) SA 31`9 (W) at 323 D.

(12)

"The fact that an amendment may cause the other party to lose his case against the party seeking the amendment is not, of itself, "prejudice" of the sort which will dissuade the court from granting it. "Prejudice" in this context embraces prejudice to the rights of a party in regard to the subject matter of the litigation, provided there is a causal connection which is not too remote between the amendment of the pleadings and the prejudice to the other party's rights." See South-British Insurance Co Ltd v Gllisson 1963 (1) SA 289 (D) at 296A-C; GMF Kontrakteurs (Edms) Bpk and Another v Pretoria City Council 1978 (2) SA 219 (T) at 222H-223A.

(13)

In her testimony, the plaintiff did not allude to the fact that she was aware that Baragwanath Hospital's employees were guilty of professional negligence in that they delayed in diagnosing and according treatment to her injured left leg. The plaintiff became apprised of the alleged negligent diagnosis and treatment accorded her by Baragwanath Hospital's employees and the consequent claim arising therefrom, during her cross-examination when confronted by the defendant's counsel with Dr Schnaid's addendum to his medico-legal-report.

(14)

The objective reality is, it could not have been possible on 8 June 2008 for the plaintiff to have pertinently instructed the defendant to sue

2014 JDR 0772 p6

Mokgoatlheng J

Baragwanath Hospital and its employees for damages arising from their alleged professional negligence. Consequently, the plaintiff could not have pertinently pleaded that she had also instructed the defendant to sue Baragwanath Hospital and its employees for professional negligence which resulted in the amputation of her left leg.

(15)

The application was not acceded to due to considerations of equity, and fairness to the defendant. However, the dismissal of the application does not necessarily exculpate the defendant from being liable for professional negligence, that exigency is an issue requiring a different enquiry as the following exposition will demonstrate.

THE LAW

AN ATTORNEY'S LIABILITY FOR BREACH OF CONTRACT

(16)

"Professional negligence is the failure by an attorney to act with the competence reasonably expected of ordinary members of the attorney's profession. An attorney must be meticulous, accountable,… He or she must serve his client faithfully and diligently and must not be guilty of any unnecessary delay. He or she must once he or she has undertaken the client's case, not abandon it without lawful reason or excuse. An attorney who fails to explain his or her precise instructions and lays possum invites an adverse inference against him or herself. Where a client's claim prescribes under his or her watch, he or she is guilty of a breach of his or her mandate and duty to his or her client by his or her failure to present countervailing evidence that his or her mandate and instructions were circumscribed and not open ended." (my emphasis)

…"An attorney is liable for the consequence of gross negligence if he or she displays a lack of reasonable skill and diligence in the performance

2014 JDR 0772 p7

Mokgoatlheng J

of his or her duties in matters within his or her field of practise, expertise or knowledge"

…"An attorney's liability arises out of contract and his or her exact duty towards his or her client depends on what he or she is employed to do. In the performance of his or her duty or mandate, an attorney holds himself or herself out to his or her clients as possessing the adequate skill, knowledge and learning for the purpose of conducting all business that he or she undertakes. If, therefore, he or she causes loss or damage to his or her client owing to a want of such knowledge as he or she ought to possess, or the want of such care he or she ought to exercise, he or she is guilty of negligence giving rise to an action for damages by his or her client against him or her." (my emphasis) (See Charlesworth on Negligence, 4th ed., paras. 1032-42; Clark and Another v Kirby Smith, (1964) 2 ALL E.R. 835, and Bagot v Stevens Scanlan & Co., (1984) 3 ALL E.R. 577); Honey & Blanckenberg v law 1966 (2) SA 43 (R) at p46; See also Halsbury's Law of England, 3rd ed., Vol 36, para 135.

(17)

There is no defence to a claim of negligence where an attorney delayed in issuing summons and if he or she did so after the claim had prescribed, he or she is guilty of the breach of a duty of care in which the plaintiff's damages loss was foreseeable. See Mazibuko v Singer 1979 (3) SA 258 (W) at 261C-D; Mouton v Die Mynwerkersunie 1977 (1) SA 119 (A) at 142-3, Mlenzana v Goodrick and Franklin Inc 2012 (2) SA 433 (FB).

2014 JDR 0772 p8

Mokgoatlheng J

The Nature of an Attorney's Duties

(18)

The nature of a an attorney's contractual duties encapsulates: " the implied obligation to devote attention to the client's business with the reasonable care and skill to be expected from a normally competent and careful practitioner… that obligation (is not only a compendious or exhaustive definition of all the duties assumed under the contract created by the retainer and its acceptance)…. A contract gives rise to a complex of rights and duties of which the duty to exercise reasonable care and skill is but one…To conduct a personal injuries...