Durban - Two Road Accident Fund employees will have to disclose on Monday who was responsible for the bungling of a serious claim - and then explain to a Durban High Court judge why they should not pay the substantial litigation costs of the case from their own pockets.
The fund conceded liability for the accident in 2009 in which La Mercy boat captain Colin Friedemann was injured - but three years later when the matter came to trial to determine the amount of compensation, lawyers acting for the fund had received no instructions on the way forward.
Instead of settling, or at least negotiating the issues to be determined at a trial, Friedemann’s lawyer’s were forced to proceed with calling expert evidence, incurring huge costs as a result.
“It was like clubbing baby seals,” one observer said.
“The fund’s lawyers had nothing to counter the evidence presented.”
Friedemann, 53, lodged his claim with the fund following a head-on collision in October 2009 on the M4 freeway between Umdloti and Verulam when another motorist swerved on to his side of the road.
According to documents which came before Judge Jacqui Henriques, Friedemann broke his leg and sustained injuries to his face, chest and right arm.
He spent three days in hospital. After surgery, his right leg was left shorter than his left, meaning he could no longer work as a marine boat skipper.
An industrial psychologist reported “that the quality of his work had been significantly and negatively affected”.
While he would have some residual earning capacity, an actuarial calculation supported a claim for loss of earnings of more than R2 million.
On top of this, he claimed general damages of R600 000.
After initially defending the claim - saying the accident was his fault, or at least partly his fault - in May 2012 the fund conceded liability.
Friedemann’s lawyers, Friedman and Associates, secured expert reports and set the matter down for trial last week.
Attorney Donavan Patterson wrote to the fund in early May, reminding it of the matter and putting on record that he had called “numerous times” but had not received a response.
He confirmed that consultations with all the experts had been done and the matter would proceed.
He pointed out that the fund seemed to have no attorneys on record and asked about the possibility of settlement and who he should be contacting.
A “senior” promised to respond with “a tender” before the trial date.
But no offer was ever made.
At the start of the trial, on the second day and again before she made an order, Judge Henriques enquired about any offers from the fund’s advocate.
The response was always that he had no instruction.
Judge Henriques ordered that the fund pay Friedemann almost R2.8m and made the most punitive costs order against the fund, the claims handler and the senior manager.
She said someone from the fund had to explain why a trial ran for two days with absolutely no instructions about a settlement.
She ordered that affidavits as to who should be held responsible must be filed on Monday and she would consider the matter tomorrow.
The Mercury