Independent Newspapers
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Durban – The Supreme Court of Appeal has thrown a financial lifeline to two small children, who, after suffering brain injuries in a road accident 15 years ago, were first paid “trifling amounts” by the Road Accident Fund, then ripped off by their lawyer – who stole the money.
The court ruling last week, confirming the setting aside of the settlement agreement concluded by their mother with the fund in 1999, now clears the way for their case to begin again and for new evidence to be placed before a court in an attempt to increase the compensation from the R10 850 the little girls were collectively awarded to the estimated R3.6 million they are now claiming.
Their new attorney, Anthony Millar, described the case as precedent-setting in that it established that victims of road accidents were entitled to be paid reasonable compensation. And, he said, it could see other “extreme cases” of injustice being brought back to court.
Millar told The Mercury that the matter had been brought to his attention by another client who knew the family.
“Our initial interest in the case was to claim from the Attorneys’ Fidelity Fund for the money stolen by their erstwhile lawyer, who has subsequently died.
“When we called the mother and children in, we noticed one of the little girls had a very noticeable dent in her head and we started discussing why the case had settled for such a paltry sum.
“I could not let it lie. So we had both children comprehensively medico-legally examined, which established that they had both suffered brain injuries.
“Advocate Eric Myhill was appointed as curator to act in the best interests of the children and we then went to court to get the settlement agreement set aside.”
The matter was first heard in the Johannesburg High Court and the fund took it to the Supreme Court of Appeal (SCA).
According to evidence, the mother had been walking on a Katlehong road facing oncoming traffic, holding her two-year-old’s hand and with her four-month-old daughter on her back, when she was struck by the car from behind.
Both children were taken to hospital with head injuries.
In his judgment, SCA judge Eric Leach, with four judges concurring, said the initial claims had been about R57 000 and R60 000, but the fund had “started the bidding” at R8 000 and R7 000, knocking off a further 30 percent because it deemed the mother to have been partially to blame for the accident.
Judge Leach said a contract could be set aside if it was shown to be prejudicial to a minor at the time is was concluded. In the present case, the medical reports recorded that both children had suffered from serious head injuries and that after they were released from hospital, their mother reported that they both had seizures and these had been further investigated.
However, it seemed the fund did not take this into account in its assessment for damages.
“The amounts offered were wholly inadequate… where there were indications of post-traumatic epilepsy,” he said, adding the settlements were “trifling and obviously prejudicial to the children”.
And then the “already parsimonious amounts” offered were reduced further to cater for an apportionment of blame against their mother.
“The time has come for this court to put this matter beyond doubt and rule that a debtor liable to a minor child, when sued by the child’s custodial parents, may not set off against its liability to the child any amount that it may personally be owed by the parent,” he said, noting that in this matter there also seemed to be no evidence the mother had been negligent.
Millar told The Mercury that the matter had been set down for trial next April, but he hoped for an earlier settlement. He said the fidelity fund had paid out what the former attorney had stolen and this amount would be deducted from the new compensation amount.
The Mercury
