A nursing sister, paid an “under-settlement” of just more than R17,000 by the Road Accident Fund for being unable to work for three months, has failed in her efforts to claim further damages.
The Western Cape high court found in favour of the RAF after determining that the nurse had filed her full damages claim — for just over R2m — after the prescribed deadline. This delay was attributed to her own error and a host of legal bunglings.
Phozisa Tosholo told the court she was a passenger in a car accident in Cape Town on July 9 2012. She was badly injured in the crash and unable to work for three months, returning to duty on October 12 2012.
At the time of the accident, Tosholo was employed by nursing agency Charisma, and worked at both Kingsbury and Vincent Pallotti hospitals. She was paid out just more than R950 for her sick leave period by the agency.
While Tosholo was off work, she visited Tygerberg Hospital for follow-up treatments for her injuries. On one of these visits she was approached by a RAF representative who advised her to visit the RAF offices in Cape Town to lodge a claim for the losses she had suffered.
Tosholo told the court she did this and had submitted only proof of her loss of earnings, which were calculated to be R38,012,70 — the amount she originally claimed. The settlement was prepared by an RAF official to reflect a loss of earnings amount only, and a nil value in respect of any other damages such as medical expenses.
On November 18 2013 she signed the settlement offer of R17,121,40.
Tosholo later claimed that she had not properly read the contents of the acceptance she had signed and did not realise it was a final settlement for her claim.
Tosholo later claimed that she had not properly read the contents of the acceptance she had signed and did not realise that it was a final settlement for her claim.
Sometime after she received her money Tosholo met a woman in her community who assisted people with their RAF claims and she then signed up with a law firm.
Two years after the accident, in June 2014, Tosholo’s attorneys asked the RAF to reconsider Tosholo’s case on grounds that it had been handled by “direct claims — and grossly under-settled”.
The RAF responded that the claim had been fully settled and any new claim was a duplication.
In January 2018, Tosholo’s attorneys claimed they had no knowledge of a final settlement and issued a summons based on the RAF’s “breach of agreement” or alternatively “breach of duty of care”, which caused Tosholo to “suffer damages to the amount of R2,110,000”.
Tosholo’s lawyer Nicola Haupt told the court she believed that the RAF had conceded liability and that her client was entitled to issue a summons for further damages.
The RAF’s lawyer testified that a full and final settlement was reached and paid to Tosholo, confirming that the amount had related only to past loss of earnings without an allowance for general damages.
The court found that Tosholo herself, though intelligent and “able to hold her ground”, had been vague on details and that “her conduct in this regard cannot be rewarded with any merit”.
The court found that while Haupt’s conduct could not be faulted, she had erred in not responding adequately to the RAF’s contention that the case had been fully settled with a fresh claim based on alleged under-settlement.
The court found that the RAF’s lawyer “did not impress either”, berating him for “incurring extensive costs without apprising himself of all the facts”. His claims of handling hundreds of files were accepted as “understandable but not excusable”.
The court described the conduct of both lawyers as “that of the blind leading the blind, both to the ultimate prejudice of their respective clients and most regrettably to the detriment of the plaintiff”.
The court found that the RAF Act makes no provision for a late claim, “either based on the ignorance of the claimant, or for any other reason”.
Would you like to comment on this article?
Sign up (it's quick and free) or sign in now.
Please read our Comment Policy before commenting.