Paper 1: RAF Flashcards
What is the definition of a motor vehicle?
S1 of the Road Accident Fund Act 56 of 1996: any vehicle designed or adapted for propulsion or haulage on a road by means of fuel, gas or electricity , including a trailer , a caravan, an agricultural or any other implement designed to be adapted to be drawn by such motor vehicle.
In what instance can a claimant not claim the balance of loss of support from the wrongdoer?
Where the claimants annual loss of support exceeds R160 000, they cannot claim the balance/ shortfall from the wrongdoer ito the common law.
What is the definition of a road?
A specially prepared track between places used by pedestrians , riders and vehicles (Chauke v Santam Ltd)
What vehicles do not qualify as a motor vehicle?
- lawnmower
- midget racing car
- go kart
- self propelled vehicle designed to provide power to a jet
- forklift
- midget oval track racing vehicle
What two unusual vehicles do qualify as motor vehicles ?
- a six seater golf cart shuttle
- a quad motor cycle
What 5 questions would you ask to assist you in establishing the merits or liability in an RAF matter?
- date , time , place where collision occurred
- what police station collision reported to + accident report number
- copy of Police collision report
- registration details of other driver
- photos of collision and damages to vehicles
- insurance details
- independent witness statements
- whether a post mortem was taken if someone died
What 5 questions would you ask which would assist you in establishing the quantum of damages in an RAF matter? (where the person died)
- financial details ie financial statements , bank statements, vat returns
- employment details
- funeral expenses - itemised
- marital regime - if ICOP the L&D is needed for loss of support
- details of minor children
What is the object of the Road Accident Fund?
To compensate persons for bodily injuries or death caused by or arising from the negligent driving of a motor vehicle.
Who does the Road Accident Fund Act indemnify?
Wrongdoers / Negligent Drivers / Owners of motor vehicles.
Who is entitled to lodge a claim against the Road Accident Fund?
All road users within South Africa are covered by the provisions of the RAF Act.
Are foreigners entitled to lodge claims arising from bodily injuries or death arising from motor vehicle collisions on South African roads?
yes
From where does the Road Accident Fund receive its income?
Income is derived from a levy that is based on fuel sales known as the RAF Fuel Levy.
The RAF Fuel Levy income is a charge levied on fuel throughout the country.
The value of the RAF Fuel Levy per litre is determined by the National Treasury annually.
what is the difference between general damages and special damages?
General damages - non pecuniary loss ie pain, suffering , shock, disability, disfigurement , loss of amenities of life
Special damages - represents actual financial and out of pock loss
give examples of special damages
Past Loss of support Future Loss of Support Past hospital and medical expenses Future hospital and medical expenses Past Loss of Earning Capacity Future Loss of Earning Capacity Funeral Expenses
What options are available to the RAF upon receipt of the RAF Form 4?
reg 3(3):
- Accept the RAF Form 4; (1)
• Reject the RAF Form 4 and provide reasons; (1) or
• Reject the RAF Form 4 and refer the injured for a further assessment in terms of the Regulations (1).
Section 1 of the RAF Amendment Act, describes the “owner” of a vehicle. List the categories of persons described as “legal owners”.
- Motor dealer in relation to unsold motor vehicles;
- Transporter of new vehicles from one place to another;
- Instalment sale purchaser (hire purchaser); and
- Lessee where the period of the lease exceeds 12 months.
Describe a “Driver” as stipulated in terms of Section 1 of the RAF Amendment Act.
The driver is the person who, for purposes of the RAF Act, drives the vehicle within the meaning of Section 17 of the Act .
You represent Mrs Ndlovu, a 28-year-old woman, who sustained injuries when she was involved in a motor vehicle collision on Anton Lembede Street, Durban. The
collision occurred on 7 November 2018. At the time of the collision your client was a fare-paying passenger in a minibus taxi (with known registration). Your client informs
you that the driver of the minibus taxi was driving at an excessive speed at the time of the collision. No other motor vehicles were involved in the collision.
What is the last date for lodgement of the claim?
What is the last date for service of the summons?
(1) 6 November 2021
(2) 6 November 2023
what documents would you submit to the RAF when you lodge a claim?
- RAF Form 1
- With completed statutory medical report
- Section 19(f)(i) affidavit
- Power of Attorney
- Copy of Client’s Identity Document
- Accident Report
- Hospital / clinical records
On admission to hospital your client was treated for:
• A traumatic brain injury with a presenting Glasgow Coma Score of 9/15;
• Extensive lacerations on the forehead and lower lip;
• Fractured right tibia and fibula.
Name 5 specialist medical experts you would instruct
- Orthopedic surgeon (1)
- Occupational therapist (1)
- Neurosurgeon / neurologist
- Industrial psychologist (1)
- Actuary
- Plastic surgeon
Apart from the definition of a motor vehicle name five (5) practical factual questions that you would ask to objectively determine whether a vehicle is indeed a motor vehicle.
(a) Would the vehicle normally be expected to be seen on the road by the normal ordinary rational driver? (1)
(b) Does the vehicle have headlights? (1)
(c) Does it have brake lights? (1)
(d) Does it have direction indicators? (1)
(e) What is the maximum speed limit of the vehicle? (1)
What must the Plaintiff do in the event where the Fund refuses to settle the merits formally and refuses to make any interim payment(s)
Serve summons in the High Court; (1)
•
Apply to separate the issues of liability and quantum in terms of Rule 33
- Obtain an order in the Plaintiff’s favour on liability; (1)
- Bring a formal application to Court in terms of Rule 34A for an interim payment. (1)
Can a life partner claim loss of support in an RAF claim?
yes where:
(a) deceased undertook to support partner
(b) created a binding and enforceable contract protected by s9 of the constitution
- the common law has been developed to protect these claims for loss of support (Brenda Jacobs v RAF)
Can a life partner claim loss of support for minor children?
The mother as the sole natural guardian of the children has locus standi to recover on their behalf:
if the deceased as the biological parent of the minor children owed them a legal duty of support they were fulfilling at the time of death.
Does not matter if they were not married to the mother.
The period of support will depend on the circumstances of the family and whether, but for the accident, the children would have been supported beyond the age of 18 (attending tertiary training or work seeking).
You are required to distinguish between the degrees of negligence that need to be proven in respect of a passenger claim and a driver’s claim.
For a passenger to succeed with a claim against the Road Accident Fund proverbial 1% negligence needs to be proven on the side of the insured driver whereas for a
driver to avoid any apportionment of his claim 100% negligence needs to be proven on the side of the insured driver.
In other words, an apportionment is not possible against a passenger but is possible against the driver of a vehicle depending on the degree of negligence of both drivers.
List four non-deductible collateral benefits.
- Benefits derived from insurance and assurance policies maintained by the third party or bread winner;
- Insurance and pension benefits payable to dependant’s;
- All ex gratia payments of whatever nature;
- Money obtained from a child grant.
Name the claims for compensation that can be instituted against the Road Accident Fund and under which circumstances precisely
- medical expenses resulting from MVA
- funeral expenses from death by MVA
- general damages for pain and suffering (serious injury , disfigurement, mental impairment, loss of bodily function, loss of unborn child)
- loss of earnings - if unable to work from accident
- loss of support - if breadwinner killed in MVA resulting from someone else’s negligence
Draft the citation of the Road Accident Fund as the Defendant in a Combined Summons under the Particulars of Claim.
The Defendant is the Road Accident Fund (1), a juristic person (1) created in terms of The Road Accident Fund Act, Act 56 of 1996 as amended (1), (hereinafter referred to as “the Act”), with the legal capacity to institute and defend legal action, with its main place of business at 38 Ida Street, Menlo Park, Tshwane, Gauteng (1).
Can a Third Party claim legally be ceded prior to litis contestatio? Litis Contestatio meaning a civil proceeding in which controversial issues are established and submitted before a Magistrate for examination of fact and judgment.
no
where would you lodge the a road accident fund claim
the claim can be lodged with any of the branch offices of the RAF
In the case of legal proceedings for the RAF which court will have jurisdiction
The court within whose geographical jurisdiction the cause of action (collision) or the court in whose geographical area of jurisdiction the RAF has its principal place of business ie Pretoria
Is your client who was a pedestrian at the time of a MVA entitled to lodge a claim against the RAF - she fell into a ditch to avoid being hit by a car and sustained serious injuries
yes she is entitled to claim as the injuries are caused by the negligent driving of a motor vehicle
Can passengers in motor vehicle accidents claim from the RAF and is their claim limited?
yes they can claim, since August 2008 the claim is no longer limited to R25 000.
Does a passenger in a motor vehicle accident have a claim against the driver of the vehicle they were in?
No the amended act specifically excludes this claim
Your client’s car is damaged in a collision. The cost of repair amounts to R94 000. The driver of the other vehicle is duly charged with reckless driving and convicted. Your client requests advice as to the possibility of him being compensated for damages in terms of the CPA.
Advise your client as to the procedure to follow.
s300:
- if damage or loss to property , court can award compensation
- court can refer to evidence and trial proceedings
- advise client to advise the court personally or request the prosecutor to make the application on his behalf
- court will need doc proof of damages in the form of expert evidence as in the case of a civil action
what is the effect of an award made ito s300 of the CPA?
has the effect of a civil judgment, steps to recover are same as civil action (warrant of execution issues/ s65 proceedings instituted)
Are claims from the RAF subject to any exclusions or limitations? (passenger in same vehicle/same member of household)
Since Aug 2008, claims are not limited to R25 000 for passenger claims in respect of members of the same household.
Is loss of a foetus considered general damages?
yes - it is an express ground in the narrative test
what is the limit of the claim for loss of support
160 0000, excess cannot be claimed from the wrongdoer
does a claimant have a claim for bodily injury against the negligent driver or owner of a vehicle and if so when
A claimant will not have a claim against the driver unless:
- the Fund or agent unable to pay
- secondary emotional shock
what is secondary emotional shock
claim or damages resulting from emotional shock sustained by a person who was not a third party when that person witnessed or observed or informed of the bodily injury or death of another person as the result of the driving of the motor vehicle.
Oliver is a paraplegic as a result of a motor vehicle accident - can damages incurred as a result of his injury be recovered from the RAF?
yes if the damages arise out of the negligent driving of a motor vehicle in terms of s17 (1) of the RAF Act.
