Personal Injury

Question 1

What are the categories of passengers that existed under the preceding legislation that have since been repealed?

Answer 1

Section 18(1)(a)(i)-(iv) limited the claim of passengers who were conveyed in or on the motor vehicle to R25 000 and such passengers were those who were conveyed in the motor vehicle:

i) for reward
ii) in the course of the lawful business of the owner of the MV
iii) in case of employee of driver/owner of that MV, in respect of whom (2) doesn’t apply, in the course of his employment
iv) for the purpose of a lift club

Question 2

What was the impact of the judgment of Da Silva v RAF on claims limited in terms of the preceding Act?

Answer 2

S 19(b)(ii) of the preceding act which provided that
- ordinary passengers or
- member of the household of the driver/owner of the vehicle, or
- person responsible for the maintenance of the owner/driver
who was being conveyed in or upon the MV concerned was excluded from claiming from RAF
was declared unconstitutional and repealed.

Claimants whose claims were previously limited in terms of this section had until 19 June 2015 to apply the provisions of the TP Act and elect whether they want to continue in terms of preceding or new Acts.

Question 3

Briefly describe the most important aspects of the RAF legislation after the amendments of 01 August 2008 (the current act) and the common law with regard to the law of delict and insurance.

Answer 3

1. Definitions: motor vehicle & conveyance
2. Liability of RAF:
   - section 17(1) - establishes liability of RAF in cases of personal injury resulting from motor vehicle collisions
   - Section 21(1) - abolition of certain common law claims i.e. claims against owner/driver/employer and RAF only liable for general damages in respect of serious injury as contemplated in s17(1A).
3. Liability is fault based - third-party must prove that death/injury as a result of negligence or other wrongful act
4. Only for bodily injuries or death. Long-term psychiatric injury is considered a bodily injury. (Bester v Commercial Union)
5. Must have been caused by or arising out of the driving of a motor vehicle - if injury/death would’ve happened irrespective of whether the accident occurred
6. The driver of the vehicle may have been any person whatsoever - needn’t be the owner/with owner’s consent/still valid if unauthorised
7. Injury or death must have been due to the negligence or other unlawful act of driver, owner or owner’s servant in the execution of his duties - failure to exercise degree of care and skill that a reasonable man would’ve exercised in the circumstances.

Question 4

On which date did the RAF Act and the RAF Amendment Act come into effect, respectively?

Answer 4

Act: 01 November 1996

Amendment Act: 01 August 2008

Question 5

With reference to the concept of negligence, indicate under which circumstances the RAF will be liable to pay compensation.

Answer 5

• Negligence is the failure to exercise the degree of care and skill that a reasonable man would have exercised in the circumstances.
• In applying the reasonable man test, it must be determined whether a reasonable man in the position of the driver:

a) would’ve foreseen the reasonable possibility of his conduct injuring others/causing a loss
b) would have taken reasonable steps to guard against the occurrence but
c) failed to do so.

Should all three requirements be met, the insured driver would be negligent and RAF liable to pay.

Question 6

Explain how the RAF, being created by Statute, acts as the substitute for the common law wrongdoer as far as the Act applies.

Answer 6

The RAF Act has enabled the RAF to step into the shoes of the wrongdoer. Thus, if the wrongdoer would have been liable to compensate the third party, the RAF becomes liable instead. Equally, if the wrongdoer is not liable to compensate, neither is the RAF.

Such substitution relieves the common-law wrongdoer to the extent of the Act. A third party is not entitled to claim against the common-law wrongdoer to the extent that the third party can claim damages in terms of the Act.

Question 7

Explain the RAF’s liability in claims for “primary emotional shock” and the exclusion of liability for “secondary emotional shock”.

Answer 7

In Swartbooi v RAF, a distinction was made between primary and secondary victim.

A primary victim was directly involved in the collision whereas a secondary victim has observed, witnessed or been informed thereof and has suffered resulting detectable psychiatric injury as a result.

s21(2)(b) provides that a secondary emotional shock injury will be suffered by a person, other than the third-party, when that person witnessed, observed or was informed of the bodily injury or death of another person as a result of the driving of a MV

Question 8

What are the essential elements to successfully prosecute a claim for damages under the RAF legislation after the amendment of the Act?

Answer 8

1. Fault: Third party must prove negligence or another unlawful act on the part of the driver/owner of another motor vehicle
2. Only for bodily injuries or death
3. Must have been caused by or arising out of the driving of a motor vehicle
4. Driver of the vehicle can be anyone, not limited to the owner
5. Causation: Injury or death must have been due to the negligence or another wrongful act of driver/owner of another motor vehicle

Question 9

Distinguish between “special damages” and “general damages”

Answer 9

General damages are non-pecuniary damages that have no intrinsic worth and need to be quantified on a case-by-case basis. These include pain and suffering, loss of amenities of life, shock, disability, loss of earning capacity etc

Special damages represent actual financial loss and include medical and hospital expenses, loss of income, loss of support and funeral expenses

Question 10

Explain the effect on claims for general damages where the injuries are “minor” or “serious”

Answer 10

1. Since the Amendment Act, only non-patrimonial (general) damages for serious injuries, as assessed in accordance with the prescribed methods, can be recovered from the RAF.
2. No other non-patrimonial damages may be claimed as s21 absolves the wrongdoer driver from liability by abolishing the common law claim.
3. To prove a serious injury, regulation 3 prescribes that there must at least be a 30% WPI established using the American Medical Association’s Guidelines.
4. If the claimant’s injury is less than 30% of the WPI test, they may use the narrative test.
5. The narrative test focuses on four considerations to determine if the claimant still qualifies for general damages, namely:

a) Injury resulted in a serious long-term impairment or loss of bodily function;
b) constitutes permanent serious disfigurement;
c) resulted in severe long-term mental or behavioural disturbance or disorder
d) loss of a foetus

Question 11

Explain the limitations of the amounts payable by the RAF in certain types of claims in respect of claims arising after the RAF Amendment Act.

Answer 11

In terms of section 17(4)(c), there is a limitation/payment CAP on the loss of support or loss of income claimable from RAF.

Regardless of the actual loss of income or support, such losses are to be calculated proportionately to an initial maximum annual loss which has been increased to R319 810 as of April 2022, and adjusted quarterly.

Question 12

With reference to High Court Rule 34A, explain the criteria to be proven to force the RAF to make an advance payment to a claimant.

Answer 12

Advance payments are governed by Section 17(6) of the RAF Act and HCR 34A.

The Fund may make advance payments to a third party, out of the amount to be awarded to such third party in respect of

a) Medical Expenses
b) Loss of Income; and
c) Loss of support

There is no formal way to request an advance payment from RAF, but if the third-party wants to bring an application to court to enforce this, they must bring application in terms of HCR 34A.

This dictates that the merits had to be conceded/ partly conceded by RAF before a court may order the advance payment.

Question 13

Explain which procedure should be followed where a person was injured in a motor vehicle collision whilst on duty and explain the position of the Compensation Commissioner.

Answer 13

Section 35 of COIDA provides that an employee may not sue their employer and is only entitled to claim compensation as provided for in terms of COIDA.

The effect of section 35 of COIDA is that it negates the employee’s common law right. Therefore, the wrongdoer, if also the employer, may not be held liable by the injured. The RAF may consequently neither be held liable.

If a person is injured in a motor vehicle collision whilst on duty, and the wrongdoer is the employer, the injured person is entitled to claim from the Compensation Commissioner.

The Compensation Commissioner can claim back from the RAF such compensation paid to the employee however, it cannot recover a greater amount than that which was claimed by the injured person.

However, if the person is injured in a motor vehicle collision whilst on duty, and the wrongdoer is another person that is not the employer, the injured person has a claim against the RAF and the Compensation Commissioner for injury on duty.

Question 14

List the situations in which the RAF’s liability is entirely excluded.

Answer 14

1. If claim for secondary emotional shock suffered by a person not involved in accident
2. Where wrongdoer would not have been liable
3. If claim has not been instituted by third-party or on behalf of a third party by attorney/state employee
4. If third-party refuses to submit medical examination
5. Non-disclosure of evidence to the RAF

Question 15

List the circumstances under which the RAF will have right of recourse, as well as against whom this right may be exercised.

Answer 15

1. Where driver was under the influence of intoxicating alcohol to such a degree that his/her condition was the sole cause of the collision
2. Where driver of motor vehicle has committed any other unlawful act to such a degree that his/her act was the sole cause for the collision

RAF will be entitled, without taking cession of the right of action, to recover from such wrongdoer driver.

Question 16

Discuss the concept of “prescription” with regard to motor vehicle accident claims where the identity of the owner or the driver thereof has been established distinguishing between the normal situation and:

• a minor;
• a patient/person detained under Mental Health legislation;
• a person under curatorship
• a person who is “non compos mentis” (not of sound mind or insane)

Answer 16

Prescription shall be suspended, i.e. not run against the belowmentioned persons and will commence running when:

a) minor - minor attains the age of 18
b) mentally ill person - curator ad litem is appointed
c) person under curatorship - curator ad bonis appointed
d) non-compos mentis (not of sound mind) - curator ad litem appointed

Question 17

Discuss the concept “prescription” with regard to motor vehicle accident claims where the identity of neither the owner nor the driver has been established

Answer 17

1. A claim against RAF arising from the driving of a motor vehicle in the case where the identity of the wrongdoer driver/owner is known shall become prescribed within 3 years from the date on which cause of action arose.
2. If a valid claim is made within the 3 years, the period shall be extended by a further 2 years to serve summons.
3. A claim against RAF arising from the driving of a motor vehicle in the case where the identity of the wrongdoer driver/owner is unknown, shall become prescribed within 2 years from the date on which cause of action arose.
4. if a valid claim has been brought within the 2 years, the period shall be further extended to 3 years to serve summons.

Question 18

Explain what the meaning of section 23 and 24(6) respectively entail for purposes of calculating the date/time of serving summons, so as to avoid the premature issuing of Summons.

Answer 18

In terms of section 24(6), no claim is enforceable by legal proceedings commenced by summons against the Fund until the expiry of 120 days from the date on which the claim was lodged/ all s19(1) requirements have been complied with, unless the Fund has repudiated the claim before the expiry period.

In terms of section 23, no valid claim which has been lodged within the prescribed period, shall prescribe before the expiry of five years.

This has the effect that if a valid claim has been lodged within 3 years in respect of an identified driver/dependants in the case of a breadwinner, the claim is extended for a further period of 2 years for the service of summons.

the adverse is applicable in respect of matters in respect of an unidentified driver.

Question 19

Explain the serious consequences and finality of prescription.

Answer 19

1. No extension of prescription is possible either by waiver of such right or condonation.
2. Non-compliance with the claim periods will result in the claim prescribing and that is final.

Question 20

Explain how section 17 of the Children’s Act applies to accidents before and after 1 July 2007.

Answer 20

In terms of section 17 of Children’s Act, prescription of a minor is interrupted until such minor becomes a major upon reaching the age of 18.

In respect of cause of action arising prior to 2007, the running of prescription would be suspended and will commence to run from the date on which minor turns 21.

However, there has been a further interpretation providing that where a minor was 18 or older on 01 July 2007, prescription of the claim starts to run from 01 July 2007 and the date of the accident is irrelevant.

Question 21

Explain the difference between lodging a claim and instituting action

Answer 21

When instituting an action, you do so before a court based on a cause of action. You are required to issue and file the action with the court and serve it on the opposing party.

When lodging a claim, you are required to complete RAF Form 1 together with the medical report . Form 1 is delivered by hand/post to RAF offices. The Fund is obliged to acknowledge receipt in respect of a claim delivered by hand at the time of the delivery and in writing.

Question 22

Explain the prerequisites to be complied with in terms of the Regulations current legislation, with regard to “hit and run” accidents and the consequences of case law.

Answer 22

Provision is made for RAF to handle claims, which arises from the driving of a motor vehicle, where neither the identity of the driver/owner can be established.

Requirements:

1) neither driver nor owner’s identities can be established
2) if registration number of motor vehicle obtained, the attorney on behalf of the third-party should run a licence check from the licensing authority to establish such identity
3) merely identifying the registration number does not render the vehicle identified.

Majority decision in SA Eagle v Pretorius

• decided that identification of owner was the only aspect of compliance with the procedural requirements for claiming compensation
• Thus, if Plaintiff supplied a registration number, then the claimant had identified the owner or the driver of the vehicle.
• it will always remain a factual question whether the owner/driver had been identified.

Question 23

Explain what “Locus Standi” means

Answer 23

Locus Standi refers to one’s legal capacity to litigate. In general terms, the test is whether the individual has the capacity to distinguish between right and wrong, and be able to act in accordance with that distinction.

The person must have the necessary intellect to understand the litigation process. It is for this reason that the following categories of persons are deemed to not have locus standi:

1) minors
2) persons detained under Mental Health legislation
3) person under curatorship
4) a person not of sound mind or insane

Question 24

Distinguish between the locus standi of married and unmarried persons with reference to:

1. Marriages concluded in COP before and after 1984;
2. Marriages out of COP
3. Marriages between black persons before and after 1988
4. Customary marriages

Answer 24

1. a) Wife entitled to sue in her own name without assistance/consent of spouse, for compensation iro personal injury
   b) wife can sue unassisted for special and general damages

Question 25

Explain the concept of Apportionment of damages

Answer 25

• Apportionment of damages empowers the court to reduce the damages if the the claimant is partly at fault for the damages sufferesd.
• for example in a RAF claim, if the claimant did not have their seatbelt on at the time of the collision, that would contribute to the damage suffered and thus the court could reduce their claim having regard to the degree of their fault.

Question 26

Explain ?…≥

Answer 26

where a plaintiff alleges that:

• two or more persons are jointly and severally liable in delict to him for the same damages ,
• that such persons, referred to as joint wrongdoers, may be sued in the same action.

court may make judgements against wrongdoers as follows:

• either to pay damages jointly and severally, the one paying the other to be absolved; or
• apportion the damages and give separate judgments against the wrongdoers proportionate to the fault of each

Question 27

Indicate which factors should be considered in order to assess a likely award for general damages.

Answer 27

If a claimant’s injuries do not meet the 30% WPI assessment test, the narrative test can be applied which involves the following considerations:

1) if the injury resulted in a long-term serious impairment or loss of bodily function
2) if the injury constitutes a permanent serious disfigurement
3) results in a severe long-term behavioural or severe long-term mental disturbance or disorder
4) results in loss of a foetus

Question 28

Explain the differences between the AMA disability guide test procedure and the “narrative test”.

Answer 28

with the AMA guide test, the claimant must
1) submit themselves for an assessment by a medical practitioner. Such doctor must complete the RAF4 form (report).

2) claimant bears the cost of the assessment unless the claimant ultimately establishes all the essential elements of the liability of the Fund AND RAF has to pay general damages if the injury is serious.
3) If injury not on the non-serious injury list, but the injury indicates a less than 30% whole person impairment, narrative test will be performed.

In terms of the Narrative test, the medical practitioner considers whether the injury resulted in the four consequences.

Question 29

Explain how to manage the RAF 4 form and the procedural and prescription aspects related thereto.

Answer 29

1. The RAF 4 form is to be completed by the medical practitioner/superintendent of the provincial hospital who first treated the deceased/injured party
2. If the MP or Superintendent concerned fails to complete the report on request and there is a danger of prescription, the report may be completed by another medical practitioner who has fully satisfied himself regarding the COD/Nature of treatment of the injuries in respect of which claim is made.

Question 30

Explain the internal review procedure to the Appeal Tribunal should the RAF dispute or reject a serious injury assessment.

Answer 30

1) If the Fund rejects/ disputes the assessment of the injury as “serious” that decision is not invalid
- if no legal/medical basis is provided for that decision; or
- because the court does not agree with reasons given.

2) A decision by the Fund is subject to an internal administrative appeal to an Appeal tribunal. The claimant must go through the appeal tribunal.
3) Neither decision by the AT nor the Fund is subject to appeal to the court. may only be reviewed under PAJA.

Question 31

Explain the difference made by the COID Act in particular to claims where the plaintiff was partially to blame.

Answer 31

In terms of COIDA, the damages must be apportioned when there is a COIDA claim as well.

In determining the plaintiff employee’s full common law damages, the apportionment against his claim should first be applied before the final award by the CC is subtracted.

Question 32

What are the limitations imposed on claims for hospital and medical expenses?

Answer 32

• claims for past medical and hospital expenses must be supported by vouchers reflecting date and nature of treatment, name of patient and expense incurred. medical aid vouchers and receipts for payment made are not considered vouchers.
• The expense for replacing false teeth, spectacles or artificial limbs are not recoverable unless a direct consequence of the injury sustained
• medico-legal reports are not part of medical expenses but part of the legal costs
• claims for future medical and hospital expenses are determined from estimates in the form of medico-legal reports
• ## that estimate is made in terms of present rates

Question 33

What impact does the RAF Regulation regarding the annual income in relation to loss of income or loss of support have on a claim?

Answer 33

• the regulation provides a limitation or cap to the annual amount that may be claimed by a third party in respect of the loss of support and loss of income categories in a RAF claim.
• The impact this has is that it limits the amount that can be claimed to the gazetted amount.

Question 34

Explain the dispute resolution procedure

Question 35

Briefly explain the purpose of COIDA and the extent to which an employee is protected

Answer 35

COID Act provides for compensation for disablement in the form of occupational injury or diseases sustained or contracted by employees in the course of their employment. Compensation Fund further provides protection to the dependants of an employee who has died as a result of a work-related injury or disease.

Act excludes certain persons:

1) SANDF members
2) SAPS members
3) Military service employees
4) independent contractors
5) employees working outside south africa for more than 12 months at a time, unless agreement entered into with Fund

• ## claim must be reported within 12 months of disease/injury/death

Question 36

Can Life Partners claim from RAF?

Answer 36

A life partner is entitled to claim for loss of support arising from the motor vehicle accident. The partner must have been financially supported by the decease or be able to prove that part of life partnership.

This was confirmed in the Paixao case. The fact that they were unmarried does not have a bearing on her claim.