Chapter 2

Question 1

Given that sec21 should be deemed pro non scripto the wrongdoer can potentially, if not actually be held personally liable in a few exceptional circumstances:

Answer 1

1- When the RAF is unable to pay compensation
2- When the relevant motor vehicle was driven without the owners permission
3- When the claim is excluded by provisions of the RAF Act of 1996
4- When the claim is restricted by the provisions of the RAF Act of 1996
5- In other instances of personal liability based on right or recourse and joint and several liability
6- When a secondary road accident victim suffers emotional shock

Question 2

Inability of the RAF to pay compensation or no current operative third-party compensation system

Answer 2

If the RAF is unable to pay compensation, the wrongdoer is directly and personally liable. This also applies to vicarious liable employer. A precondition of the liability of the wrongdoer or vicarious liable employer is that the inability of the RAF must be proven. Onus rests upon the third party claimant to prove inability. Should the RAF be unable to pay, the most obvious way to prove inability would be would be to institutes claim against the RAF when it is liquidated.the difference between the dividend paid and the chula claim can be recovered from the wrongdoer. Should the quantum be settle by the RAF such settlement does not bind the wrongdoer.

Question 3

Vehicle driven without the permission of the owner

Answer 3

Wrongdoer may be held personally liable if he drove the vehicle without permission of the owner thereof. In such circumstances third party has a claim either from the wrongdoer or RAF.

Question 4

Liability of RAF excluded. Exclusion takes effect when third party or bread winner is conveyed or injured or killed by sole negligence of a driver of a vehicle in which he or she is being conveyed if the third party

Answer 4

1- Entrust the handling of his or her claim to a person who is not admitted and practicing attorney
2- Enters into an agreement with another person not being an admitted or practicing attorney in terms of which the third party pays to such party after the completion of the claim a portion compensation received or pays an investigating fee out of the compensation received where such an investigation was not authorized by an admitted and practicing attorney
3- Unreasonably refuses or neglects to do-operate with regards to medical examinations, medical records, inspection of medical records and reports or refuses or neglects to furnish affidavits or other information regarding the accident to RAF

Question 5

Other instances based on right of recourse and joint and severally liable

Answer 5

Person can be held personally liable:
1- When RAF acquires a right of recourse against the owner and both the authorized and unauthorized driver of a motor vehicle for the recovery of compensation paid by it in circumstances where the owner or another person drove the relevant motor vehicle without a drivers license or under the influence of intoxicating liquor
2- When a driver together with the RAF is held jointly and severally liable as joint wrongdoer for the damage of a passenger

Question 6

Explain the General Principles of RAF

Answer 6

The mechanism is used by third parties to ensure that the motor vehicle accident victim is protected against the possibility of non recovery of his damage due to the fact that the wrongdoer is unable to pay such a victims loss is the suspension of such a victims common law delictual claim and the transposition is therefore a statutory created fund. Third parties are compelled by law to institute a claim against RAF and may not legally claim from the wrongdoer or driver or employer who is vicariously liable, provided that the claim is in fact a third party claim complying with all the requirements stipulated by the act.

Question 7

Explain the nature of Jurisprudential nature of third party claims

Answer 7

Third party’s claim against RAF is unitary common law for compensation for damages arising out of the lawful and negligent driving of a motor vehicle resulting in injury or death of a person. It’s a unitary clam irrespective of the fact that it is constituted by both Patrimonial and non Patrimonial damages.

Question 8

What are the requirements for the liability of the RAF where the identity of the owner or the driver of the relevant vehicle is known are contained in Sec17(1) of the Act and reads

Answer 8

The fund or agent shall

(a) subject to this Act, in the case of a claim for compensation under the section arising from the driving of a motor vehicle where the identity of the owner or the driver thereof has been established
(b) subject to any regulation made under sec26, in the case for a claim of compensation under this section arising from the driver of a vehicle where the identity of neither the owner nor driver thereof has been established.

Question 9

Explain the nature of Jurisprudential nature of third party claims

Answer 9

Third party’s claim against RAF is unitary common law for compensation for damages arising out of the lawful and negligent driving of a motor vehicle resulting in injury or death of a person. It’s a unitary clam irrespective of the fact that it is constituted by both Patrimonial and non Patrimonial damages.

Question 10

What are the requirements for the liability of the RAF where the identity of the owner or the driver of the relevant vehicle is known are contained in Sec17(1) of the Act and reads

Answer 10

The fund or agent shall

(a) subject to this Act, in the case of a claim for compensation under the section arising from the driving of a motor vehicle where the identity of the owner or the driver thereof has been established
(b) subject to any regulation made under sec26, in the case for a claim of compensation under this section arising from the driver of a vehicle where the identity of neither the owner nor driver thereof has been established.

Question 11

Bodily injured third parties. Persons who sustain bodily injuries due to negligent unlawful driving qualifies as a third party and refers to as

Answer 11

1- Unborn persons
2- Minors represented by guardians
3- Guardians of minor in own right
4- Married persons married icop 
5- Unrehabilitated insolvents

Question 12

Unborn persons third party claim

Answer 12

Unborn person whom is injured in mothers womb and survives, will have a claim for damages and loss for injuries thus sustained. Courts adopt approach based on causality rather then viability of foetus at time it was injured. Claim will lie if it shown that foetus sustained injuries due to accident and not during birth.

Mtati v RAF

Question 13

Minors third party claim

Answer 13

S17 of child’s act says child whether male or female becomes major at time of reaching 18years old

Question 14

Guardians of minor liable for third party compensation

Answer 14

Can either be mother or father of the minor child. Guardian of minor is legally obligated to support his or her son or daughter and as a result is obligated to pay for medical and other expenses arising from injury of his or her child. This basis of guardians claim is fact that his duty is accelerated or exacerbated by unlawful and negligent actions of wrongdoer.

Question 15

Married persons third party compensation claim

Answer 15

1- OCOP: there is no reason why spouses cannot hold each other liable for unlawful and negligent acts committed by either of them which results in suffering damages to their separate estates.
2- ICOP: one joint estate which the spouses are owners of equal indivisible shares is created
: Administration and ability to contract and bind joint estate subject to joint control of spouses
: Ability of spouses to claim form each other is restricted
: Ability of joint estates for depicts committed by spouses is circumscribed

Van der Merwe v RAF (pg36)

Question 16

Third parties who suffer loss of maintenance.

Claimant legally married to the deceased

Answer 16

1- Civil marriages
2- Customary marriages
(Pg38)

Question 17

Duty to maintain as a legal basis of claim. Two cases exist

Answer 17

1- Third party suffers loss of maintenance as a result of death to breadwinner
2- Third party who suffers loss of maintenance as a result of injury to breadwinner

Question 18

Explain the categories of third parties who suffer loss of maintenance

Answer 18

1- Duty to maintain as a legal basis
2- Claimant legally married to deceased
3- Partners in same sex marriages
4- Live in or life partners
5- Duty to maintain contractually created
6- Partners to a relationship solemnized by other rites
7- Other defendants
8- Children and spouses of death of one parent or spouse
9- Adopted children
(Pg38-40)

Question 19

Other third parties

Answer 19

1- Person who benefitted from services of deceased
2- Cessionaries
3- Executors, curators, heirs and legatees
4- Owner of vehicle injured by own vehicle
5- Employer of a third party
(Pg43-45)

Question 20

Conduct: requirements of Driving of a motor vehicle or other unlawful act committed by certain persons

Answer 20

1- Driving
2- Motor vehicle
3- other unlawful act
4- Particular actors being the driver, owner or other persons

Question 21

Explain the concept of driving

Answer 21

1- Ordinary sense of the concept of driving
2- Extended meaning of driving
3- Towed vehicles
(Pg52-62)

Question 22

Conduct: Other unlawful act. Scope nature and application with examples s17(1)

Answer 22

1- The driving of a motor vehicle
2- Other unlawful act

• allows incompetent person to drive his vehicle
• allows drunk or other person to travel on back of truck when conveyance of such person in manner be considered negligent
• fails or neglects to maintain his vehicle properly
• fails or neglects to check tyre pressure or break fluid level in motor vehicle
• fails or neglects to install adequate firefighting equipment on vehicle resulting in injury to passengers
• fails to secure a load properly
  (Pg69)

Question 23

Other unlawful acts committed by employee of owner of a motor vehicle in execution of duty

Answer 23

Pg70-74

Question 24

Fault: Negligence as minimum requirement in relation to fault and intent

Answer 24

Sec17(1) says there must be negligence in order to establish liability of RAF. If negligence suffices as form of fault, then intentional act will give rise to liability

Question 25

Concept of Negligence

Answer 25

When person is negligent, he or she reproached for his or her conduct or attitude of carelessness and inattentiveness because his or her conduct does not comply with standard of care legally required of him or her. Standard used to judge this is BONUS PATERFAMILIAS. If negligence applied to a motor vehicle accident, court places itself as far as possible in place of driver at time of accident.

Question 26

Test for establishing negligence: Reasonable person or bonus paterfamilias

Answer 26

1- Characteristics of reasonable person
2- Reasonable person test and child
3- Disable pedestrians
4- Reasonable person test and experts
5- Reasonable person test and unskilled and unlicensed drivers
(Pg75-77)

Question 27

Explain the principal of uncontrolled intersections and junctions

Answer 27

Driver A approaches uncontrolled intersection or junction entitled to assume that Driver B who is approaching same intersection or junction from different direction has observed approach that should driver A approach intersection first, driver B take reasonable steps to avoid collision. Assumption does not entitle A to assume he has exclusive right of way.

Pg85

Question 28

Explain the principles of sudden emergency

Answer 28

Driver who encounters an unexpected and sudden emergency annoy be found to be negligent if, whilst being subjected to such an emergency, he or she chooses such an option which after the event proves to have been wrong, as long as such a driver, nonetheless takes the best possible cause of action to avoid a collision.

Question 29

Example of the circumstances of sudden emergency

Answer 29

1- Approached by a vehicle on its incorrect side of the road.
2- Confronted by a vehicle which suddenly swerves across the path of its travel.
3- Approached by a vehicle which is out of control.
4- Surprised when the door of a vehicle suddenly opens.
5- Faced with pedestrian or child suddenly running in front of his vehicle.
6- Attacked.
7- Experiencing a sudden unexpected skid.
8- Experiencing an unexpected mechanical failure.

Question 30

What are the requirements for the circumstances of sudden emergency

Answer 30

1- Unexpected and sudden
2- Reasonable care and skill
3- Mechanical defects
4- Skidding
5- Blackouts

Pg89-90

Question 31

Negligence: Proof. Prima facia

Answer 31

A- Collisions on the incorrect side of the road.
Irrefutable proof of collision on incorrect side of road, collision constitutes prima facia on part of driver who was found on incorrect side of road at time of collision. Once plaintiff establishes that collision took part on his side of road, defendant has to explain his presence on incorrect side of the road. If explanation insufficient,defendant will be held negligent.
B- Rear end collisions.
If driver of vehicle collides with rear end of vehicle in front of him, prima facia negligence unless explanation indicating he was not negligent can be given.

Question 32

Explain proof of negligence on a balance of probabilities

Answer 32

Negligence proven on balance of probabilities. Where statutory presumption regarding negligence, presumption has to be rebutted. Negligence deduced on balance of probabilities from circumstances of occurrence such as hot and run accident where unidentified vehicle fails to stop. In some cases, vehicle collision experts have to be employed in order to reconstruct the accident so probable cause of accident can be determined. When employing experts, care must be taken regarding facts on which reconstruction is based.

Question 33

Explain Negligence: Proof: Res Ipsa Ioquitur

Meaning and application

Answer 33

Implies facts of the case indicate negligence where proven facts are only available evidence.
Res Ipsa Ioquitur doesn’t create presumption of negligence and doesn’t transfer burden of proof.
Only indicates probabilities through proven facts which may justify or support a finding of negligence on a balance of probabilities . In order for party to rely on this, sufficient proof of facts to justify inference of negligence from proven facts have to be adduced. Plaintiff bound by facts alleged to have caused the accident.

Question 34

Examples of where Res Ipsa Ioquitur is applicable

Answer 34

1- Driverless vehicle comes into motion and collides with other vehicles.
2- Collusion occurred on incorrect side of the road.
3- Vehicles overturns on straight and narrow road while negotiating a turn.
4- Vehicle collided with parked stationary vehicle or with building in broad daylight.
5- Collision with pedestrian while pedestrian was clearly visible at all times and walking in the roadway, especially where pedestrian was killed and cause of death fall s within particular knowledge of driver

Pg93