An ambulance driver seriously injured in a collision with a motorist 14 years ago in Cape Town thought a Road Accident Fund (RAF) payout would cover his medical expenses and loss of earnings.
But to add insult to injury, he ended up in a legal skirmish with his lawyers who bungled the claim and the other insured driver subsequently passed away.
Donovan Moose, a basic life support ambulance practitioner, sued Van der Schyff Attorneys for breach of mandate after they failed to lodge his RAF claim timeously. Moose was transporting a patient in a “critical condition” to hospital at the time of the crash.
He told the high court in Cape Town that a “black Mercedes-Benz” collided with the ambulance he was driving in Athlone in August 2011 and he was injured.
He hired the firm to lodge a claim, but it later transpired that it was not processed before it prescribed. Moose then sued the law firm. The high court has now found the firm “liable to [Moose] for such damages as may be proved or agreed”. It also ordered the firm to pay legal costs.
“[Moose] alleges that the collision was caused by the sole negligence of the insured driver and that he sustained serious bodily injuries as a result of the collision. [Moose] accordingly alleged that he had suffered damages in the form of past medical expenses, future medical-related expenses, loss of earnings and general damages,” the judgment reads.
Moose told the court he had hired the firm in 2014 to “lodge a valid RAF claim with the RAF timeously and within the statutory time limit”.
“[Moose] pleaded that the [law firm], when accepting [him] as a client, undertook a legal duty towards [him] to execute his claim against the RAF,” the judgment reads.
“[Moose] further avers that during March 2020 he established that because of the [firm’s] breach of the agreement, alternatively the breach of its legal duty to him, his RAF claim had prescribed as the [firm] had wrongfully and negligently failed to prosecute the RAF claim timeously and within the statutory time period of five years.”
The law firm denied the collision was caused by the sole negligence of the insured driver.
They drove onto the bridge to go onto the intersection of the N2 when she suddenly felt the impact on the left side of the ambulance which flipped over
— Judgment
“[The law firm] further denied the allegations made by [Moose] in respect of the agreement but averred that during the time that [the attorney] was in any manner dealing with [Moose’s] affairs ... acted with the requisite skill and without negligence,” the judgment reads.
The firm said it had always acted on Moose’s instructions as a client and argued it could not proceed with the claim because Moose failed to respond or make timely contact, despite repeated attempts. The firm denied breaching its contractual duty, stating it had not neglected any obligation. It argued it could not issue a summons against the RAF because Moose had not provided the information required to calculate a claim based on his injuries.
Moose called a colleague who was involved in the collision to bolster his case. She testified they were on Jakes Gerwel Drive turning onto the off-ramp towards the N2 in the direction of Cape Town. She was in the patient compartment of the ambulance.
“She testified that they had been called to assist a patient in Bonteheuwel and were driving to New Somerset Hospital ... with the patient who was in a critical condition,” the judgment reads.
“They drove onto the bridge to go onto the intersection of the N2 when she suddenly felt the impact on the left side of the ambulance which flipped over.”
She said the ambulance was not speeding due to traffic at the time.
“She advised that [Moose] would stop at stop streets and only proceed if it was safe to go over. She further confirmed the ambulance made use of both the lights and sirens when it was travelling with a patient in a critical condition and gave an explanation as to how she knew that both the lights and siren were operating at the time of the collision,” the judgment reads.
"[She] testified that upon exiting the ambulance after the collision, she noted [Moose] lying in the road in a critical condition.”
“Her evidence was not disputed under cross-examination and no contrary version of the events that day were put to her.”
The motorist who collided with Moose also submitted an affidavit supporting his version.
“He advised that he was driving his black Mercedes and did not see the ambulance and only saw what had collided with his vehicle when he exited his vehicle. He was not injured in the collision,” the affidavit reads.
The motorist “did not deny that the ambulance lights or sirens were activated at the time of the collision but stated that he did not see them”.
Acting judge Frederick Sievers ruled that “there would have been a likelihood of success in proceedings against the Road Accident Fund”.
“I accordingly find that the defendant is liable to the plaintiff for such damages as may be proved or agreed, plus costs,” said Sievers.
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