Drake Flemmer & Orsmond Inc & another v Gajjar NO

The plaintiff, Mr Rex Sutherland, was injured in a motor vehicle collision in 1997 and instructed Drake Flemmer & Orsmond Inc (DFO) to pursue a Road Accident Fund (RAF) claim. DFO negligently under-settled the claim in 1999 by failing to investigate and claim for loss of earnings and a brain injury. Mr Sutherland later instructed Le Roux Inc (LRI) to sue DFO, but LRI negligently allowed that claim to prescribe by miscalculating the prescription period and mishandling the litigation. By the time the matter came to trial, negligence by both firms was conceded. The only remaining issue was the proper assessment of damages suffered by the plaintiff as a result of the professional negligence, including the correct date at which damages should be valued.

The appeal was dismissed with costs. The cross-appeal was upheld. Paragraph 87.1 of the court a quo’s order was set aside and replaced with an order directing the second appellant to pay the respondent R9 211 953.

This case authoritatively clarifies that in South African law, damages for attorney negligence in under-settling personal injury claims should generally be assessed at the date of a notional trial of the original claim, not the settlement date, where the attorney failed to properly investigate the claim. It aligns South African law with comparative Commonwealth jurisprudence and reinforces the compensatory principle in contractual damages.