Fourie v Ronald Bobroff & Partners Inc

On 27 June 2005, the appellant Ms Fourie, her husband, and their two children were involved in a motor vehicle collision. Her husband and infant daughter died as a result of the collision, while Ms Fourie and her son Lincoln sustained physical and emotional injuries. In August 2005, Ms Fourie instructed the respondent law firm, which specializes in personal injury claims, to claim damages from the Road Accident Fund (RAF). Summons was issued in August 2007 claiming loss of support, loss of income, and general damages for both Ms Fourie and Lincoln. The case was set down for trial on 1 August 2011. Approximately ten days before trial, attorney Ms Farraj decided not to pursue Ms Fourie's claim for loss of earning capacity, instead making a crude calculation that suggested pursuing loss of support would be more favorable. At the time of her husband's death, he earned R11,066 per month, but by August 2011, Ms Fourie was earning R36,521 per month and had been in fulltime employment since October 2006. The matter settled for R1,777,810.50 on 29 July 2011. Ms Fourie subsequently became dissatisfied and sued the respondent for breach of mandate in September 2012, alleging the firm failed to properly pursue her loss of earning capacity claim and undersettled general damages.

• Whether the respondent attorney breached its mandate by failing to pursue the appellant's claim for loss of earning capacity
• Whether the respondent breached its mandate by accepting inappropriately low amounts for general damages for the appellant and her minor son
• What standard of skill, knowledge and diligence is expected of an attorney specializing in personal injury claims
• Whether the appellant proved damages flowing from the alleged breach of mandate
• What evidence is required to establish the monetary value of loss of earning capacity

The order of the High Court was varied by substituting the dismissal of the appellant's claim with an order of absolution from the instance. Save for that variation, the appeal was dismissed with costs, including the costs of two counsel.

An attorney who specializes in personal injury claims has an implied obligation to exercise the skill, knowledge and diligence expected of an average attorney in that specialist field. Where an attorney fails to properly investigate and quantify a claim for loss of earning capacity by relying on guesswork rather than obtaining necessary expert evidence on the extent of impairment and differential contingency deductions, this constitutes a breach of mandate. However, to recover damages for breach of mandate, a plaintiff must prove not only the breach but also the quantum of damages suffered - that is, that they would have recovered more had the mandate been properly performed. This requires proper expert actuarial and industrial psychology evidence. Where such evidence is not presented, a plaintiff fails to discharge the onus of proving damages, and absolution from the instance (rather than dismissal) is the appropriate order. Claims for loss of support and loss of earning capacity cannot be pursued for the same period on mutually exclusive factual assumptions.

The Court made several observations about the conduct of the litigation: (1) It noted that the appellant had changed her case multiple times, initially claiming early retirement at age 57½, then at age 55, and only during opening address claiming complete loss of earning capacity - suggesting the claim lacked proper foundation. (2) The Court commented that while a 10% differential contingency deduction appeared too low and a 70% deduction appeared too high, the Court could not itself engage in the same guesswork it criticized the respondent for making. (3) The Court observed that lay evidence from Church employees about the appellant's unemployability could carry no weight against objective evidence of good performance appraisals and expert medical opinions that she remained employable with some impairment. (4) The Court noted that the assessment of general damages is 'notoriously difficult' and not an exact science, supporting judicial deference to experienced counsel's advice on settlement amounts within reasonable bounds.

This case establishes important principles regarding attorneys' duties in personal injury litigation, particularly: (1) the standard of care expected of specialist personal injury attorneys when assessing and pursuing claims; (2) the requirement to properly investigate and quantify loss of earning capacity claims through expert evidence rather than crude estimates; (3) the incompatibility of pursuing loss of support and loss of earning capacity claims on mutually exclusive factual assumptions for the same period; (4) the burden on a plaintiff to prove both breach of mandate and actual damages flowing from that breach; and (5) that even where breach of mandate is established, absolution from the instance (rather than dismissal) is appropriate where the plaintiff fails to prove damages. The case illustrates the practical difficulties in quantifying professional negligence damages and emphasizes that courts cannot engage in speculation when expert evidence is required but not provided.