Trollip v Phatshoane Henney Attorneys  ZAFSHC 158
The plaintiff, JT, sustained injuries in a motor vehicle accident in November 2009. JT consulted the second defendant, PS, then in the employ of the first defendant, about a possible claim against the Road Accident Fund. PS sent JT to a general medical practitioner in 2012 for an assessment of her injuries. Based on the practitioner’s report PS then instituted a claim on behalf of JT in the Regional Court for an amount of just over R220,000. In January 2015, PS arranged for consultations for JT with an occupational therapist and an industrial psychologist. Based on their reports PS realised that the claim was instituted in the wrong forum, as the assessments showed that JT could claim much more – settlement was later reached for an amount of over R2.2m. The amount of the claim could not be increased beyond R400,000 however, as that is the limit of the Regional Court’s jurisdiction. The prescription period of five years for claims against the fund had also run out, therefore new summons in the high court could not be issued. PS informed JT of the results of the reports in June 2015 and informed her on 9 July 2015 of the fact that the claim could not be increased beyond R400,000. The claim was successful, but after costs and fees JT received only R290,000. In July 2016 JT consulted another attorney who indicated to her that she has a possible claim for negligence. When JT then instituted the claim against first respondent and PS on 24 July 2018, the defendants raised the defence that her claim against them prescribed as more than 3 years had expired between 9 July 2015 and 24 July 2018.
The court (Loubser J) dealt with the requirements for the defence of prescription to succeed and found that prescription starts to run from the moment the creditor (including a plaintiff in a delictual claim) is aware of all the facts that must be proved to succeed with the claim. The court found that JT was only aware of all these facts when advised by another attorney in July 2016 that she had a possible claim against PS based on his negligence not to have her assessed by specialists earlier. PS did not inform her in 2015 that her limited claim was the result of his negligence as he did not regard it as his duty.
In paragraph 22 of the judgement the court held: “As for the duty to inform, I cannot agree with the Second Defendant. When there is a conflict between an attorney’s own interest and the interest of a client, the interests of the client must certainly prevail. This is not the point however. The point is that the Second Defendant did not inform the Plaintiff, therefore wilfully preventing the Plaintiff to know of the existence of the debt.”
The court ordered the defendants to pay JT the amount of R2,261,204 plus interest, plus costs on attorney and client scale, plus the costs of the medical experts assessments and reports, plus the travel and accommodation costs of her legal representatives as well as that of the medical experts.
Fiduciary practitioners should take note of the court’s finding in paragraph 22, as the same principle will apply to fiduciary practitioners in circumstances where they failed in the performance of their fiduciary duty.