Steyn NO v Ronald Bobroff & Partners

• Jurisdiction: South Africa
• Court: Supreme Court of Appeal
• Judge: Brand JA, Bosielo JA, Shongwe JA, Southwood AJA and Saldulker AJA
• Judgment Date: 29 November 2012
• Citation: 2013 (2) SA 311 (SCA)
• Hearing Date: 08 November 2012
• Docket Number: 025/2012 [2012] ZASCA 184
• Counsel: B Ancer SC for the appellant. R Stockwell SC for the respondent.

Bosielo JA (Brand JA, Shongwe JA, Southwood AJA and I Saldulker AJA concurring):

[1] This appeal raises the contentious question of the duties and obligations of an attorney to his/her client and the circumstances under which an attorney can be held liable for want of the requisite care, skill and diligence which he/she is expected to exercise in handling the affairs J of his/her client.

Bosielo JA (Brand JA, Shongwe JA, Southwood AJA and Saldulker AJA concurring)

[2] In order to appreciate and understand the crucial role which a A present-day attorney plays in many people's affairs, I deem it necessary to give a brief evolution of the profession of an attorney over the years. In his book, The Judicial Practice of South Africa 4 ed vol 1 at 31, GB van Zyl said the following about the profession of an attorney:

'In ancient days the profession of an attorney was considered as B infamissima vilitas, servile, of no value, and contemptible. But under the Roman Emperors Diocletian and Maximilian it became an office of respect and good repute. Many people still think at the present day as the ancients did before the period of these Emperors. Even Lord Macaulay, the learned historian, who in all his professional career held only one brief, for which he received a guinea, could not refrain from C remarking: That pest whom mortals call attorneys. But the present consensus of opinion, all the civilised world over, is that the profession of an attorney is an honourable and respectable one, and to be held in the utmost esteem. An attorney is nowadays an indispensable adjunct to everyone, not only in lawsuits but in many other private affairs, and his office is deemed both necessary and praiseworthy. It is essential, D therefore, that the relationship between him and the public should be better known; as also what is expected of him and what his obligations are.'

[3] Many years ago and whilst grappling with the liability of an attorney who failed to give sufficient care and attention to the affairs of his/her E client, De Villiers CJ said the following in Van der Spuy v Pillans 1875 Buch 133 at 135:

'I do not dispute the doctrine that an attorney is liable for negligence and want of skill. Every attorney is supposed to be reasonably proficient in his calling, and if he does not bestow sufficient care and attention, in F the conduct of business entrusted to him, he is liable; and where this is proved the Court will give damages against him.'

See also Armitage's Trustees v Allison 1911 NPD 88. The attorney's profession having become more diverse and sophisticated, these wise words are, to my mind, more apt today than they were during the time of De Villiers CJ. Indubitably, this is the yardstick against which the G respondent's conduct in this case has to be adjudged.

[4] This matter is on appeal before us from the South Gauteng High Court (Tsoka J) with the leave of this court. To a large extent the facts of this case are relatively simple and undisputed. Furthermore, the H points of law raised herein are short and crisp. They are: whether in its preparation, formulation, collation, submission and eventual prosecution of the claim of the appellant's minor son (M), the respondent (a firm of attorneys) failed to act in accordance with the reasonable diligence, care and skill expected of a practising attorney or, as the appellant contended, as 'pre-eminent specialists' in the field of personal injury I claims. And if not, whether the respondent can be held liable for the consequential damages suffered by the appellant, being the amount representing the interest which the appellant lost on the capital amount paid by the Road Accident Fund (the Fund) 14½ months late. Simply put, is it competent for the appellant to claim mora interest as damages in a matter where the respondent is not her debtor. J

Bosielo JA (Brand JA, Shongwe JA, Southwood AJA and Saldulker AJA concurring)

A [5] The salient facts underpinning this case can be succinctly set out as follows: On 17 March 2006 the appellant instructed the respondent to institute a third-party claim against the Fund on behalf of M for damages resulting from injuries sustained in a motor vehicle accident which occurred on 28 August 2005. It is common cause that M had sustained B a fractured skull. The appellant and respondent had entered into three written agreements which in essence gave the respondent the mandate to investigate, process, lodge and prosecute the claim to finality. These written agreements contain the essential terms and the fee arrangements agreed upon between the parties. Pursuant to the mandate, the respondent lodged the claim with the Fund on 27 February 2007. When the C Fund failed to respond to the claim, the respondent issued and served summons against the Fund on 12 December 2007. On 16 May 2008 and after the pleadings had closed, the respondents applied for a trial date. Subsequently, the matter was enrolled for trial on 1 February 2010. The D trial date was allocated some months after it was applied for.

[6] The appellant testified that sometime in 2008 or 2009 — she was not certain of the date — she met Mr Bezuidenhout of the respondent's firm who advised her that the case had been enrolled for trial on 1 February 2010. It is common cause that sometime in October 2009, and after the respondent had notified the appellant about the trial date, she terminated E the respondent's mandate and took her file to another firm of attorneys, Norman Berger & Partners Inc. She never gave the respondent any reason for the termination of its mandate.

[7] The trial was held from 1 to 5 February 2010 and judgment delivered in her favour on 11 February 2010. Insofar as it is relevant to this appeal, F the Fund was ordered to pay the appellant R500 000 in respect of M's general damages and R2 060 099 in respect of his future loss of earnings.

[8] On 16 February 2010, a mere five days after the judgment referred to above, the appellant issued summons against the respondent wherein she claimed R479 485,20, representing damages she suffered as a result of G the interest which she allegedly lost and which could have accrued on the capital sum of R2 560 099 if the respondent had lodged her claim timeously, ie 14½ months earlier.

[9] In order to understand the appellant's claim, it is important to have recourse to her particulars of claim. Essentially, the appellant alleges that H she instructed the respondent on the strength of the fact that it had advertised itself widely, and publicly held itself out to be a firm of specialist personal injury attorneys. The appellant avers further that it was an express, alternatively implied, term of the agreements between the parties that the respondent would carry out its mandate with due I skill, care, diligence and professionalism expected of a specialist firm of attorneys who held themselves out to be pre-eminent experts and specialists in the field of personal injury claims and third party matters. Importantly, the appellant alleged that, in accepting the mandate, the respondents tacitly undertook to prepare, formulate, collate, submit and prosecute her claim against the RAF with due diligence and expedience J and within a reasonable time.

Bosielo JA (Brand JA, Shongwe JA, Southwood AJA and Saldulker AJA concurring)

[10] The essential facts which are alleged to constitute negligence and A breach of duty on the part of the respondent are set out as follows in the appellant's particulars of claim:

'12.

In breach of the written agreements aforesaid, Annexures B1, B2 and B3, and the duty of care owed by the Defendant to the Plaintiff in her capacity aforesaid, the Defendant negligently and B wrongfully failed and/or neglected properly to timeously prepare, formulate, collate, submit, institute and prosecute the Plaintiff's claim to recover damages in that it:

12.1

failed to deliver the claim to the Road Accident Fund on or before 30 July 2006 when the Defendant could and should have done so; C

12.2

delivered the claim to Defendant on 27 February 2007, some 7 months after it could and should have done so;

12.3

failed to issue and serve the Summons within a reasonable time after the expiry of the 120 day period referred to in Section 24(6) of the Road Accident Fund Act 56 of 1996 D which would have expired on 28 June 2007 and that Summons accordingly could have been served on the Road Accident Fund at any time after 29 June 2007;

12.4

only issued and served Summons on 12 December 2007, some 5½ months after it could and should have done so;

12.5

failed to have any regard to the fact that after the Road Accident Fund's Notice of Intention to Defend was E served on 11 January 2008 and that its Plea was due for service on or before Friday 8 February 2008;

12.6

failed to deliver a Notice of Bar in terms of Rule 26 of the Rules of this Honourable Court when it could and should have done so on 11 February 2008;

12.7

failed to have regard to the fact that had it served the Notice F of Bar aforesaid the pleadings would have closed alternatively the Defendant's Plea would have [been] received by no later than Monday 18 February 2008 and the Plaintiff's Plea to the Defendant's Counterclaims delivered by Monday 17 March 2008 at which time the...