Durban - The Road Accident Fund is expected to be hauled before the Durban High Court on Tuesday for failing to assist a man who suffered “severe traumatic brain injury” in a car accident.
Sakhile Lancelot Khomo, a pedestrian, sustained serious injuries when he was knocked down by a car on the R102 between Scottburgh and Kingsburgh in August 2004.
Khomo, who is from Umgababa on the South Coast, approached the Road Accident Fund in 2004/5 for help and, with their assistance, lodged a claim for compensation.
During this period the fund sent him to several medical specialists including Durban neurosurgeon Mike du Trevou, who confirmed the extent of his injuries.
Khomo said he suffered from dizziness, especially when it was hot. The left side of his body was left feeling weak and he suffered from epilepsy.
By 2009, the matter had not been finalised and Khomo approached Friedman and Associates for assistance.
In an affidavit, Khomo’s lawyer, Michael Friedman, said that on seeing the fund’s extensive advertising campaign which encouraged people to approach it directly, rather than go through an attorney, his client had been “enticed” to approach the fund in his personal capacity for the recovery of damages suffered as a result of injuries sustained.
Friedman said his client had lodged a claim with the assistance of the fund, believing that it would take all the necessary steps to ensure he was compensated. He said that Khomo had been advised by the Road Accident Fund that his matter had “been dealt with”.
When he failed to make progress with the fund, Khomo instructed Friedman’s office to continue with his claim and to take legal action against the fund. A summons was served on the fund, which it defended and, in a pre-trial conference, it agreed to make “an offer of settlement on the issue of liability”.
Friedman said that on August 22 he received a letter from the fund’s attorneys, saying they were consulting their client on the issue of liability, but denying the allegation that they were going to make an offer. But on August 28 this year, Friedman’s office was served with a settlement offer from the fund which agreed to give his client 60 percent of damages incurred, which meant that they were of the opinion that he was also partly to blame for the accident.
The following day, the Road Accident Fund’s attorneys informed Friedman that they had been instructed to withdraw the offer since the claim had become “prescribed” (expired) in 2009 as the summons had only been served on them in 2012. However, at the time it had allegedly become “prescribed” the fund had been handling Khomo’s claim.
“Even if it is entitled to raise the issue of prescription on a legal basis, how could it do so if it had enticed the applicant to attend on its offices, advertised extensively that it would assist claimants… and then raise the issue of prescription at a later date?” asked Friedman in his affidavit.
Khomo is hoping the court will compel the fund to reinstate its previous offer of compensation.
The fund has not indicated whether or not it intends to oppose the application. - The Mercury