Personal Injury Claims

Question 1

How is Liability of the RAF i.r.o MVA established?

Answer 1

Section 17 of RAFA states - the fund is liable to compensate party for claim for compensation for any loss or damages suffered as a result of bodily injuries to him/herself or any other person arising from the driving of MV where owner/driver, either identified/unidentified.

Question 2

What common law claim has been abolished in the RAFA?

Answer 2

According to Sec 21(1) - Abolishes common law claim against negligent party - act states that no claim for compensation i.r.o loss or damage resulting bod. injury/death of any person caused by/arising from driving a MV shall lie against:
- owner/driver of MV;
- employer of driver

Question 3

What is the exception to section 21(1) of RAFA?

Answer 3

Section 21 to states that subsection one does not apply when:
- The fund or an agent is unable to pay compensation;
- To an action for compensation in respet of loss/damage resulting from emotional shock sustained by a person other than a third party (shock sustained witnessing/observing/informed of bod. Injury or death)

Question 4

How does one determined liability in MVA?

Answer 4

Liability is fault based - 3rd Party must prove negligence/unlawful act by driver/owner of MV

Question 5

What may be claimed from RAF?

Answer 5

I.t.o Sec 17(1)(b) claim for loss/damage suffered only for bodily injuries or death.
Can either he financial loss or physical injury.

Question 6

What other injuries may be claimed from RAF?

Answer 6

Bodily injuries embrace mental injuries.
In case of Barnard v. Santam 1997 - emotional shock following telep. Call advising plaintiff’s son was involved in accident could found a claim against Fund. Brain and nervous system part of human body, and thus nervous shock or psychiatric trauma constitutes bodily injury.

Question 7

When foetus suffer injury as a result of MVA accident, may parents/guardian claim injuries to foetus? If so, who is entitled to lodge claim?

Answer 7

Yes, there is a claim for compensation in respect of foetus’ injuries.

• The fetus in utero is regarded as a person for the purposes of section 17(1)(a) & (b) of the RAFA.
• Our courts have held that insofar as the act offered protection to the mother of the unborn child, such protection would extend to the child itself. (Mtati v RAF 2005(6)
• Both parents may claim in their respective capabilities as parents/natural guardians on behalf of foetus for ante-natal injuries.

Question 8

What is pecuniary/special damages?

Answer 8

Also known as patrimonial loss. It relates to a loss or reduction of one’s patrimony
It is economic losses which is easily quantifiable.
- future/past loss of earnings
-past and future medical/hospital expenses incurred
- incidental expenses (travel, crutches, artificial limbs, burial expenses etc)
- loss of support

Question 9

What is General Damages?

Answer 9

A.k.a non-pecuniary loss. This type of loss includes:
- Pain & Suffering
- Shock
- Disability
- Disfigurement
- Loss of amenities
- Loss of life & life expectancy
- Loss of earning capacity

Question 10

What is the criteria to be established to recover non-pecuniary loss?

Answer 10

A 30% or more whole person impairment (WPI ito of AMA (American Medical Association) guidelines must be attained

OR

If a person does not succeed in passing the 30% WPI threshold he/she may qualify for general damages under the narrative test. To qualify for non-pecuniary damages under narrative test one must satisfy one of the following :
- a serious long-term impairment or loss of body function;
- permanent serious disfigurement;
- serious long-term mental or behavioral disturbance or disorder;
- Loss of a foetus

Question 11

Where does one lodge a a relevant claim?

Answer 11

claims may be lodged at any branch offices of the RAF

Question 12

In legal proceedings to commence, which court will have jurisdiction?

Answer 12

The court within whose geographical area of jurisdiction the cause of action arose will have the requisite jurisdiction. (For extra points mention court of example used in exam)
Alternatively, the court within whose geographical area of jurisdiction the office of the RAF has its principal place of business.

Question 13

What steps can be taken if clinical and hospital records cannot be located in time before the claim prescribes?

Answer 13

Attorney can have claimant examined by a medical practitioner who has fully satisfied himself regarding the nature and treatment of the bodily injuries, iro which the claim is made and to then prepare the medical report.

Question 14

How would one deliver a claim to the RAF?

Answer 14

By registered post or Delivery by hand.

Question 15

What are the periods of prescription in RAF matters? And define the method of calculation.

Answer 15

1. Ito Sec 23(1) a claimant has three years to lodge a claim from the date the cause of action arose (date of accident)
   where MV identified

1.2 Where MV unidentified (i.e Hit and Run) 2 years from date of collsion.

2. Ito Sec 23(3) a claim lodged within three years, shall prescribe before the expiry of a period of five years from the date the claim arose. (i.e Summons must be served within 5 years from day cause of action arose)
3. Dependent’s claim for loss of support from RAF shall become prescribed upon expiry of a three year period from the day the breadwinner passed away and five years (subject to Sec 23(2) - prescription does not run in certain circumstances)

Prescription is calculated according standard civil method - first day in last day out.

Question 16

In which circumstances does prescription not run?

Answer 16

Ito Sec 23(2) prescription does not run against:
- A minor;
- Any person detained as a patient ito applicable mental health legislation
- A person under curatorship
- Insane persons (non compos mentis)

Question 17

When does a claim prescribe iro a minor?

Answer 17

Ito Sec 23(2) prescription of a claim for compensation does not run against a minor.
Prescription only starts to run the day the minor attains major status i.e reaches the age of 18.
(RAF v. Scholtz 2003 - minor born in 1976 injured in accident in 1994. Claim lodged in 2000. Argued 5 year period started running from date of collision. Court ruled periods of 3 years and 5 years are suspended during minority and only commences to run from age 21 (previous age of majority, is now 18)

Question 18

How is a claim for non-pecuniary (general damages) motivated of a claimant? And by when must such steps be taken?

Answer 18

Ito Regulation 3 the Client must undergo the AMA serious injury assessment by a medical practitioner regarding the injuries suffered. The medical practitioner will then complete an RAF 4 form.
The above steps must be taken within a period of 5 years from date of collision.

Question 19

What is meant by term locus standi?

Answer 19

An individual’s legal capacity to distinguish between right and wrong and to act accordingly.
Minors and mentally ill person’s does not poses locus standi.

Question 20

Who has the right to lodge a claim with the RAF iro injuries sustained by a minor? Will answer differ if child is born out of wedlock?

Answer 20

1. Ito the Children’s Act 38 of 2005 either mother or farther is the guardian. If unmarried the farther must first acquire full parental rights and responsibilities ito Sec 21 of Children’s Act.
2. Ito children born out of wedlock, the mother will claim in her personal capacity all medical expenses ito maintenance obligation of such minor, during his/her minority, as a result of injuries suffered by child in a collision.

Question 21

Iro the death of a husband/partner who has locus standi to lodge claim for funeral expenses with the RAF?

Answer 21

The surviving wife/girlfriend/fiance will have locus standi to recover the funeral expenses as she will have incurred the funeral expenses.

Question 22

In a situation where the medical aid pays for medical expenses incurred during hospital treatment for MVA, can a claim for medical expenses still be claimed from the RAF?

Answer 22

Yes, the medical expenses may still be recovered from the RAF. The medical aid payment is a collateral benefit which cannot be deducted by the RAF.

Question 23

Can a woman in life partnership (i.e parties were engaged, living together for substantial amount of years) in the instance of death of breadwinner claim loss of support?

Answer 23

Yes, she may claim loss of support arising from death of partner. When a couple is engaged they intend to marry and they lived together in a life partnership which contains many characteristics of a marriage.
The characteristics of a marriage.
(Paixao v. RAF - Mrs. Paixao and daughter sued RAF for loss of support resulting from death of Mr. Gomes. They lived together and intended to marry. Mr Gomes support her and daughter financially, refered to child as his daughter. HC dismissed claim saying “would seriously erod institution of marriage” if dependent status extended to Mrs. Paixao and daughter. Found that no legal duty to supoort exists. SCA found that a tacit agreement existed creating a binding legal obligation between Mr. Gomes, Mrs Paixao and daughter. Thus, held the court, where an agreement between parties to a permanent
heterosexual life partnership establishes a reciprocal duty of support it should be afforded the protection of the common law dependants’ action. Appeal was upheld.)

Question 24

Will a wife and child claim for loss of support be affected if it was found that husband was intoxicated and lost control of vehicle and no other vehicle was involved?

Answer 24

Ito Sec 25(2)(a) where driver was under the influence of intoxicating liqour or drugs to such degree that his/her condition was sole cause of accident; or where driver does not have a valid driver’s liscense, and some other person suffers bodily injuries as a result of the negligence of the driver, the RAF is obliged to compensate the victims. Yes, wife and child’s personal claims will not be affected by man’s negligence.

Question 25

What quaifies as a MV ito the RAFA?

Answer 25

Sec 1 of the act defines a MV as:
- vehicle designed/adapted for the conveyance of not more than 10 ppl including driver;
- any vehicle designed/adapted for propulsion/haulage on a road by means of fuel, gas, or electricity, including a trailer, caravan, an agricultural designed/adapted to be drawn(towed) by such MV.

Question 26

A client suffered injuries as a result of being struck by a Go-Kart, will she be able to claim from the RAF?

Answer 26

No, she will not be able to claim from the RAF. This is due to the reason that although a Go-kart is propelled by means of fuel, it is not designed or adapted for propulsion on a road, and it is not regarded as a MV ito the act.
(Santam Ltd v Mundy & others (CDP) PL struck by wheel which came of a midget oval track racing vehicle. Court found racing cart had no handbreaks, headlights, indicators, windscreen etc. It is therefore not a MV as defined according to the act. PL argued items can be fitted to car in short amount of team. Court held that car had been constructed/designed that it cannnot be said “its ordinary and general purpose was propulsion between two places regarded as regular and usual access between places used by pedestrians, riders and vehicles”)

Question 27

Is forklift regarded as a MV according to the RAFA?

Answer 27

In Mutual & Federal Insurance Co. Ltd v Day 2001 the matter dealt with issue whether a forklift was a MV as defined in the Act. Trial Court held that it was a MV for ito the Act and was upheld by a full beanch on appeal. Insurer lodged appeal at SCA, appeal was upheld. Court held that although Road traffic Act permits a forklift to be driven on public roads does not mean that every forklift qualifies as a MV. A vehicle cannot be said to be “designed/adapted for propulsion….on a road” if its use on a road would be regarded as extraordinary and hazardous. in casu forklift was rearwheel steering system making it difficult to drive. Was found that the forklift was never designed for general use on public roads.

Question 28

What is the factual questions to be answered to ascertain whether a vehicle is a MV?

Answer 28

a) Would vehicle normally be expected to be seen on the road by the normal ordinary driver?
b) Does vehicle have head lights?
c) Does it have break lights?
d) Does it have indicators?
e) what os the maximum speed limit of vehicle?

Question 29

In the case of a Go-kart injuring pregnant woman, can she claim if the only damages suffered was the los of a foetus? Advise instituting a claim for non-pecuniary damages (general damages)

Answer 29

The client will have a claim against the RAF for non-pecuniary loss.
Ito Regulation 3(1)(b)(iii)(dd) it states - an injury which does not result in 30% or more impairement of the whole person may only be assessed as serious if that injury - (dd) resulted in the loss of a foetus.
Thus a los of a foetus is stipulated as one of the exceptions where a person will qualify for general damages although her injuries do not result in 30% or more impairment of the whole person.

Question 29

Client suffered serious injuries, RAF1 sent to hospital where treated for completion, Doctor that treated client has since passed away, matter is nearing prescription, who can complete RAF1 in such circuimstances?

Answer 29

Sec 24(2) states that it shall be completed by the medical practitioner who treated the injured/deceased, or by the Superintendent (or his/her representative) of the hospital where the injured was treated for such injuries. Provided that, if the medical practitioner or Superintendent concerned fails to complete the medical report on request within reasonable time and it appears that as a result of the passage of time the claim concerned may become prescribed, the medical report may be completed by another medical practitioner who has fully satisfied him/herself regarding the cause of death or anture of treatment of the bodily injuries iro which the claim is made.

Question 30

RAF 4 is rejected by the RAF, saying that client not entitled to be compensated for non-pecuniary damages. Attorney convinced client suffered serious injuries. Describe steps to challenge rejection? And where such dispute must be lodged as well as the prescribed time period?

Answer 30

a RAF 5 from (notification of dispute) must be completed. The grounds upon which the rejection is disputed must be set out in the form and must include such subimssions, medical reports and opinions as the disputant wishes to rely upon.
The Registrar of the HPCSA must be notified (by way of RAF 5 and annexures) within 90 days of being informed of the rejection.

Question 31

Mother stopped car with two children in car on incline, swithced off car and got out, car started moving down hill, car couldnt be stopped, collided with oncoming bus, children suffered serious injuries. Can mother claim compensation iro children’s injuries from RAF?

Answer 31

Yes, claims can be lodged against the RAF under these circuimstances for the children. In B v. RAF (41110/2013) [2016] ordinary meaning of driving MV means urging/directing course of vehicle while its in motion and will by necessity include others acts reasonably associated therewith.
However, ordinary meaning extended by:
- Section 20(1) person in control of vehicle is deemed to be the driver if the vehicle is propelled by mechanical, animal or human power or gravity;
- Sec 20(2) person who leaves a vehicle at one place is deemed to be the driver thereof, if vehicle moves by gravity to another place and causes injury whilst moving until it comes to rest at another place.

Question 32

May RAF refuse to pay ito of an offer of Settlement made before summons served (offer accepted by cleint) after death of client? And when must summons be served?

Answer 32

Legal effect of the offer and acceptance was to creat a legal binding contract between client and RAF. The death of the cleint does not release the RAF from its obligation to pay the agreed amount. The fact that the sumons has no been served has no bearing on their obligation to pay.
Due to the existence of a contract the Prescription Act applies and summons must be served with three years of date that debt was due.

Question 33

What will happen if a client dies before an offer to settle non-pecuniary damages only is accepted?

Answer 33

The RAF might be justified refusing to pay. As the client’s claim was for general damages only, and client passed away before offer was accepted and before the close of pleadings. Thus, the claim falls away as a result of the client’s death.

Question 34

What will a letter contain to a client’s employer for information required to formulate a claim for loss of earnings?

Answer 34

• Employer must be advised that you are acting on behal of the their employee in regard to his claim for damages for injuries sustained in MV collision.
• Details and time of incident must be furnished
• employer must furnish a certificate confirming your cleint’s employment with the company
• Disclose the length of employment with them
• the salary the employee earned over a 12-month period before the accident
• details of any emplopyment perks he/she may have received
• his annual sick leave and annual leave entitlement
• period he was absent from work
• Must specifically ask employer what payments employee received whilst he/she was away from work recovering from his injuries
• employer must be asked to disclose if payments where made out of conditions of employment (entitled to sick leave pay) or whether payment was ex gratia

Question 35

Whom may institute a claim against the RAF on behalf of a person in a coma?

Answer 35

Such person cannot act in his/her own interest as he/she is in a coma. A curator-ad-litem must be appointed to lodge a claim on his/her behalf.

Question 36

From who can an employee claim compensation when involved in MVA while driving employer’s vehicle?

Answer 36

A claim may be instituted against the Compensation Commissioner and RAF.

Question 37

Can an employee claim damages from Employer when involved in a MVA whilst working?

Answer 37

No, Section 35 of the COIDA (Compensation for Ocuupational Injuries and Diseases Act 130 of 1993) bars an employee or his dependant from suing his/her employer. 35(1) states - no action shall lie by an employee or dependant of an employee the recovery of any damages iro any occupational injury or deisease resulting in disablement or death of such employee against such employee’s employer. Same applies regardless if employee was a passenger or padestrian.

Question 38

Following damages was suffered by employee:
- Past hospital and medical expenses R230 000
- Estimated future medical expenses R400 000
- Past and future los of earnings R500 000
- General damages (non-pecuniary) R600 000
What damages may be claimed and from who?

Answer 38

• From Compensation commissioner he can claim R230 000.
• From RAF he can claim R1 500 000 iro special damages subject to the fund being entiteled to deduct amount from Compensation commission award.

Question 39

What is the “golden rules” of apportionment when COIDA claim exists?

Answer 39

• If there is an apportionment against PL you “first apportion against the total damages (i.e common law damages) and then deduct the compensation commissioner’s final award”. (RAF v. Maphiri [2003])
• Award under the COIDA Act is deducted from total common law damages.

Question 40

Give wording of Defendant’s alternate plea and prayer wherein contributory negligence is pleaded?

Answer 40

• Alternatively, and in the event of it being proved (found) that the driver of the insured vehicle was negligent in any respect or at all (which is denied) then the Defendant pleads that the Plaintiff was also negligent and that such negligence contributed to the collision and accordingly in terms the Apportionment of Damages Act any damages recovered by the Plaintiff must be reduced by the extent in which he was negligent.”

OR

• In the alternative, Defendant prays that the Plaintiffs claim be reduced by the extent to which this Honourable Court finds that the Plaintiff was negligent, and that such negligence contributed to the collision and that this Court make such order as to costs as maybe just and equitable.”

Question 41

What are the steps available when merits has been decided and client is suffering financially?

Answer 41

Merits has already been adjudicated(decided), thus one can apply for an interim payment in terms of Rule 34A of Uniform Rules of Court for damagaes such as, past hospital and medical expenses and past loss of income.

• Rule 34A(1) states that an action for damages for personal injuries and death of a person, the PL may at any time after expiry of period for delivery of N.O.I.D, apply for an order requiring the DF to make an interim payment iro claim for medical costs and loss of income.

Question 42

List Suspensive conditions of prescription as well as time frame until such suspension runs.

Answer 42

• Minor: Suspended until the age of 18
• Persons detained as patient ito Mental Health Act: Suspended for duration of detention as patient
• Persons under curatorship: Suspended for duration of curatorship.

Question 43

Define difference between curator ad litem and curator bonis

Answer 43

• curator ad litem usually appointed to assist person who is unsound of mind or a minor in legal proceedings.
• curator bonis appointed for person iro whom court has made an order that the person is of unsound mind and is incapable of managing his/her own affairs.

Question 44

Rule 57 provides for an application to made to court for an order declaring a person of unsound mind and therefore incapable of managing her/his affaris. List 8 averments to be made in support of such app.

Answer 44

• The grounds upon which the applicant claims locus standi.
• The grounds upon which the Court is alleged to have jurisdiction.
• The patients age and sex.
• Full particulars of his means.
• Information as to his general state of physical health.
• The relationship (if any) between the patient and the applicant.
• The facts and circumstances relied on to show that the patient is of unsound mind and incapable of managing his affairs.
• The name, occupation and address of the respective persons suggested for appointment by the Court as curator at litem and subsequently as curator bonis.
• An affidavit by at least one person to whom the patient is well known and containing such facts as are within deponent’s own knowledge concerning the patient’s mental condition.
• Affidavits by at least two medical practitioners, one of whom shall be an alienist who have conducted recent examinations of the patient.

Question 45

Assuming breadwinner did not wear seatbelt, does that influence claim for loss of support for dependants?

Answer 45

A mother will institute a claim in her personal capacity, and as mother and natural guardian of her minor children, being an innocent plaintiff and thus no apportionment may be applied ori of any alleged negligence on part of breadwinner.

Question 46

Distinguish between the degrees of negligence that need to be proven iro passengers claim and driver.

Answer 46

• For passenger to succed with claim against RAF a proverbial 1% negligence need to be proben on the side of the insured driver. (Apportainment not possible against passenger)
• For Insured driver to avoid any appotionment of his cliam, 100% negligence must be proven by driver.

Question 47

List four non-deductable collateral benefits.

Answer 47

• Benefits derived from insurance and assurance policies maintained by 3rd Party or breadwinner.
• Insurance and pension benefits payable to dependants
• all ex-gratia payments of whatever nature
• Money obtained from a child grant

Question 48

Can a reach stacker be classified as a MV?

Answer 48

In terms of section 1 of RAFA a motor vehicle is defined as “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 or adapted to be drawn by such motor vehicle.”
Definition identifies three requirements for a vehicle to be classified as a motor vehicle under the Act. Vehicle must be:
1.propelled by fuel, electricity, or gas;
2.designed for propulsion;
3.capable of being driven or operated on a road

In Road Accident Fund v Mbele (where a pedestrian who was employed as a stevedore at a multipurpose terminal died as a result of injuries sustained when a reach stacker collided into him) the Supreme Court of Appeal the court considered this very issue and was satisfied that the reach stacker could be classified as a motor vehicle having regard to the definition in the RAF Act. The RAF’s liability was thus extended to include reach stackers as defined as a “motor vehicle” in section 1 of the RAF Act

Question 49

Draft citation of RAF as DF in a combined summons under the POC?

Answer 49

The DF is the RAF, a juristic person created ito the RAF Act 56 of 1996 as amended, (hereinafter referred to as the ‘Act’), with legal capacity to institute and defend legal action, with its main place of business at 38 Ida St, Menlo Park, Tshwane, Gauteng.

Question 50

Define ‘convey’ ito RAF Act.

Answer 50

in relation to the conveyance of a person in or on a motor vehicle includes -
- entering/mounting the MV concerned for the purpous of being so conveyed
- alighting from MV concerned after being conveyed.