The Issue of Prescription: the court determined whether or not a claim had prescribed in the below mentioned matter:

Summary

In the case of Gabuza v Road Accident Fund, the Plaintiff was a passenger and both the motor vehicles that were involved in the accident were identified. The accident occurred on the 22 March 2012 and the claim was lodged on the 23 March 2015. The Road Accident Fund raised a special plea stating that the last date for lodgement was the 21 March 2015, hence the claim has prescribed.

The issue before the court was whether the claim has prescribed. The Road Accident Fund Act provides that a claim prescribes unless lodged within three years of the day which the claim arises and lodgement may be by hand-delivery or registered post and the three year period is calculated by subtracting a day from the date on which the claim arises, and adding three years to the year.

In this case the 21 March 2015, was a Saturday and it would have been possible to send my post and so lodge the claim, before the post office closed at 13h00. Therefore, it appears that the claim has prescribed on the Saturday.

However, it has been found in recent case law involving the five-year period of prescription of claim, it was found that where the five years ended on a day on which court was closed, so precluding the issue and service of summons, the five years should end on the next working day. The question was whether that principle would apply here. Namely, that when the statute prescribed a time and the act could only be performed if a certain office was open. Here the office was open in the first part of the day, but closed in the second when on an ordinary working day, it would be open.

It was held, that the principle should apply as this would support both the aims of the Act and the spirit, purport and objects of the Bill of Rights. Accordingly, the last day for lodgement was Monday 23 March 2015, on which the claim was indeed lodged and so it had not prescribed.

The full case can be read here: http://www.saflii.org/za/cases/ZAGPPHC/2018/634.html

KRIEK V ROAD ACCIDENT FUND (529/2019) [2020] ZAFSHC 42 (5 MARCH 2020)

Summary

The Plaintiff Ms Y Kriek instituted a claim against the Road Accident Fund for loss of support/maintenance following the death of her fiancé who was a passenger in a motor vehicle that veered off the road and collided with a tree  in Bloemfontein resulting in his death on the 28th April 2018. At the time of the hearing the Plaintiff was not in any form of official employment, but she did from time to time refurbish furniture and household utensils in order to make a living.

The issues before the court included the deceased’s duty of support towards the plaintiff, The RAF’s obligations to pay the amount claimed or any other amount, and the quantum of the Plaintiff’s claim for loss of maintenance.

In adjudicating on the matter the court concluded that the Plaintiff and the deceased stayed together as life partners similar to a husband and wife relationship for nearly seven years and they, together with the Plaintiff’s two children from a previous relationship, operated as a family unit.

Furthermore, the parties tacitly agreed to reciprocally maintain each other and in fact did so. Even though the parties did not have an express and definite plan to marry soon, they would remain in cohabitation as life partners. The deceased accepted the duty to maintain the Plaintiff as he in fact did for seven years.

The court further concluded that as a result of the deceased’s untimely death, the Plaintiff suffered damages in the form of past and future loss of maintenance in the amount of R2 309 643.00.

The court accordingly held that the defendant was liable to make payment to the Plaintiff in the amount of R2 309 943.00 consisting of R365 370.00 in respect of past loss of maintenance and R1 944 273.00 in respect of future loss of maintenance, as a result of a motor vehicle accident that occurred on 28th April 2018. Court further awarded cost of the action in favour of the Plaintiff.

Case citation:  Kriek v Road Accident Fund (529/2019) [2020] ZAFSHC 42 (5 March 2020)

Please read the full case on: http://www.saflii.org/za/cases/ZAFSHC/2020/42.html

ABINEIRO v ROAD ACCIDENT FUND (95211/15) [2019] ZAGPPHC 462 (19 August 2019)

Abstract:

This case illustrates the duty of care and diligence that needs to be upheld by all road users and shows that  “A driver who collides with the rear of vehicle in front of him is prima facie negligent unless he or she can give an explanation indicating that he or she was not negligent”.

 

Facts:

The Plaintiff was a driver of a truck that collided with a bus on the 12 March 2013. The Plaintiff obtained his drivers licence in Maputo and it allows him to drive and deliver goods in the SADC countries.

The plaintiff testified that he was driving on a slope going downhill and he was not able to see what was in front of him because of the rainy conditions. The only thing he saw a red tape on the left side of the road as well as the pothole. He said the road was a two-way traffic because there were motor vehicles driving from the opposite direction.

He testified that as he was driving, he did not see other motor vehicles save for the bus that was in front of him and he also did not know what was happening in front of the bus because of its height. It was put to him that as a responsible driver, he should have exercised caution and care when he realised that it was raining. In his response, he said he exercised caution by reducing the speed to between 50-60 km/h as he was driving at 70 km/h before it started raining. He said the regulated speed limit on that road was 80 km/h. He confirmed that a responsible driver should exercise care when he realizes that it is raining. He confirmed what he said in chief, that he was driving downhill on a slippery road due to rainfall. Further that when he saw the brake lights of the bus in front of him, he also applied his brakes.

It was further put to him that the insured driver’s version is that there were warning signs on the road alerting all the motorists that there is a ‘stop and go ahead’; and that as a compliant driver, he (the insured bus driver) adhered to the warning signs by gradually applying the brakes in anticipation of the ‘Stop and Go’ ahead of him.

It is generally accepted that every road-user owes a duty of care and consideration to other road-users. That duty requires of every driver to drive like a reasonable man, who would be able to reasonably foresee the possibility of unforeseen consequences and act in accordance with such appreciation.

The onus is on the plaintiff to prove on a balance of probabilities that:

(a)   a reasonable person (diligens paterfamilias) in the position of the defendant:

(i)     would foresee the reasonable possibility of his conduct injuring another in his person or property and causing him patrimonial loss, and

(ii)    would take reasonable steps to guard against such occurrence and

(b)   The defendant failed to take such steps

Failure to act in accordance to the above is tantamount in law to negligence

 

The Court reiterated that, The general approach to adopt when dealing with rear-end-collision is set out by HB Kloppers in The Law of Collision in South Africa (7th ED) page 78 as follows:

“A driver who collides with the rear of vehicle in front of him is prima facie negligent unless he or she can give an explanation indicating that he or she was not negligent.

 

Judgement:

The Court found that the Plaintiff was the sole cause of the accident and no order as to costs was made.

Read full case at: http://www.saflii.org/za/cases/ZAGPPHC/2019/462.html

NGOMANE v ROAD ACCIDENT FUND (1778/16) [2019] ZAGPPHC 51 (5 March 2019)

Abstract:

In this case the learned Judge states that with past and future loss of earnings claims. The plaintiff is not required to prove the loss with mathematical precision however the Plaintiff is required to place before the court all evidence reasonably available to enable the court to qualify the damages and to make an appropriate award in his favour.

 

Facts:

In this matter the Plaintiff claimed damages arising from injuries sustained by the Plaintiff as passenger in a collision that occurred on 10 May 2013. She suffered a soft tissue injury, tear drop fracture of the C5 and laceration on his right wrist.

As a result of his injuries he suffered damage and is entitled to damages in the sum of R855 000.00.

The disputed issue in this matter was the determination of the extent of the Plaintiff’s past and future loss of earnings and earning capacity.

The Plaintiff at the time of the collision was employed by the National Lottery Board occupying the position of assistant company secretary. He is an LLB graduate from the University of Zululand.

During 2015, he voluntarily resigned from his position to take up a position overseeing the farm activities of his family sugarcane farm. His net salary during this period was approximately R75 029.37.

The experts further agreed that the plaintiff returned to his pre­ accident employment after recuperating. Furthermore, that the plaintiff voluntarily resigned from his position to take up employment at his family’s farm. He however has been unemployed since December 2015. Having regard to all other expert reports presented to them, they opined that the plaintiff would be able to return and continue to work in the open labour market and will be able to progress in his career path and likely earnings as anticipated in the pre­ accident scenario until retirement age 65 years.

Now in determining the plaintiff’s post and future loss of earning and earning capacity the court has to determine whether post-accident and as a result of the sequelae of the collision, he has been unable to return to his position as a Legal Administration Officer.

“In the case of Bridgman NO v Road Accident Fund 2002 (1) ALLSA 1 (CPD) the court held that in order to claim compensation for patrimonial loss a plaintiff must discharge the onus of proving on a balance of probabilities that such loss has indeed occurred. This does not necessarily mean that the plaintiff is required to prove the loss with mathematical precision however the Plaintiff is required to place before the court all evidence reasonably available to enable the court to qualify the damages and to make an appropriate award in his favour”

Pre-accident the Plaintiff was gainfully employed in the position of Legal Administration Officer. Following the collision, he was able to return to his former employment but voluntarily resigned from this position.

 

Judgement:

The following order was made:

1.The Plaintiff is entitled to 100% of his proven/agreed damages;

  1. The Defendant shall pay the Plaintiff the total amount of R2 150 377.15 in respect of both his past and future loss of earning and earning capacity as well as his general damages.

Read full case at: http://www.saflii.org/za/cases/ZAGPPHC/2017/401.html

 

The reason why this case is so important is because it makes the claimant understand that the Road Accident Fund does not need to be given details with extreme precision to prove loss of earnings. As long as they are able to prove on a balance of probabilities on the evidence that they are presented with, it will be sufficient.

CLAIM SETTLED OVER 200% OF ROAD ACCIDENT FUND'S FIRST OFFER

Our client, Ms. D a professional nurse, was looking forward to her retirement at age sixty three , when she became the victim of a head on collision when the driver of an oncoming vehicle, lost control and hit the vehicle that she was travelling in as a front seated passenger.

She suffered traumatic injury to her right knee but not a fracture. The initial injury began having an effect on her and her work performance. We were of the opinion that she should be compensated for two years loss of earnings and promotional prospects as she could have elected to work until age sixty five and the reports indicated two years early retirement.

As our client was still working the Road Accident Fund refused to pay her compensation, initially offering a mere R5000.00.  After getting a liability concession and appointing experts to prove our case and a lengthy battle with the Road Accident Fund and its Attorney the Court award, inclusive of interest was R1, 004, 944,98 together with an undertaking to cover any future medical costs.

Our client was ecstatic to receive the award for future loss of earnings and can look forward to her retirement and financial security of both her pension and the Award from the Road Accident Fund.

RAF AGREED ON QUANTUM AS BEING IN THE VICINITY OF R3.6 MILLION

Mr. G came to South Africa in search of a better life for his family in 2010. He soon found work and became a lot more positive about life. Then disaster struck. He was involved in a head on collision with a truck. His dreams shattered in an instant as he was unable to work anymore.

He suffered from, amongst others, head injuries. Mr. G approached our offices in Pretoria and we advised him to claim against the Road Accident Fund.

We assisted him with his claim and sent him to various medical experts to determine the extent of his injuries.

Eventually, shortly before trial, the RAF agreed on the quantum of Mr. G damages as being in the vicinity of
R 3.6 million rand plus all future medical costs (less apportionment due to him being partially to blame for the collision)

OFFER FROM THE ROAD ACCIDENT FUND IMPROVED FROM R250 000.00 TO ALMOST R2 000 000.00

Ms. D was involved in a terrible car accident in 2010. She sustained injuries to her leg and hip. After the accident she struggled to work, to such an extent that she was eventually let go. Devastated, she contacted our offices for assistance.

A claim was lodged on her behalf and an offer was received from the RAF to settle the matter for
R 250 000.00. On our advice Ms. D refused the offer and we insisted on going to trial.

Shortly after walking into the court the RAF improved their offer to almost R 2 000 000.00, almost 8 times what our client was initially offered. In addition the RAF was ordered to pay all her future medical costs relating to the accident.

MR. M WAS PAID R3 800 000.00 WITH ALL FUTURE MEDICAL EXPENSES

Mr. M was driving on his motorcycle on a Sunday afternoon when he was knocked over by accident by a fellow rider. He suffered a head injury and started to have difficulty remembering.

At the time he was working in the finance industry. Due to his forgetfulness he was unable to perform adequately and he was let go.

We assisted Mr. M with instituting a claim against the RAF, including claims for medical costs, loss of income and pain and suffering. After negotiation Mr. M was paid R 3 800 000.00, and in addition the RAF has undertaken to pay all his future medical expenses.

Matter settled at R3 609 295.00

Ms. D. was a passenger in a bakkie, which had overturned.  This resulted in her suffering serious injuries including a head injury which left her with disfigurement of her forehead as well as cognitive deficits (problems with memory and changes to behaviour)
No offer of settlement at all was forth coming from the Road Accident Fund.  As a result we had to issue summons out of the High Court.  Still no offer was forth coming.
Only shortly before trial did the Road Accident Fund make an offer of R600 000.00 less a 20% apportionment, client was 20% liable for own injuries, which was rejected.
We were eventually able to finalise this matter for a figure of R 3 609 295, 00 together with an undertaking for payment of all future medical treatment the client may require and no apportionment against client.

Settlement secured after initial repudiation of the Road Accident Fund

Mr. B who was employed as a driver, was involved in a motor vehicle accident in which he had sustained a dislocation of and fracture to the pelvis.  Mr. b. had instructed Campbell Attorneys to seek compensation for him from the Road Accident Fund.

We had wasted no time in submitting his claim to the Road Accident Fund.  Shortly after completing their investigation they repudiated the claim on a technical basis.  Campbell Attorneys felt the Road Accident Fund’s stance was not sustainable and proceeded to issue summons against them.  The Road Accident Fund then abandoned its original ground for repudiation and now took the stance that the collision was completely the clients fault.  Days before the matter was set down for trial to decide the Road Accident Fund’s liability, the Road Accident Fund conceded it was liable but still failed to make an offer repayment.

The matter was then set down for trial to determine the issue of quantum and again days before the trial the claim was eventually settled by the Road Accident Fund.

After deducting of the amount already paid by WCC for an amount of R700 000.00

(17 June 2014)

R3.3 Million financial security for future of family

Mr. M. came to South Africa a few years ago to take up a new job to support his family who he had left behind in Zimbabwe.  Finally things were looking up for the M family.

Then, tragically, Mr. M passed away in a motor vehicle accident one evening in 2010.

Mrs. M. was distraught.  Not only had she lost her husband – she was unemployed and now had to take care of herself and their 3 minor children alone.  Desperately seeking help she contacted the Pretoria office of Campbell Attorneys.

We immediately helped Mrs. M. to lodge a claim with the Road Accident Fund but they refused to pay.  Summons was then issued against the Road Accident Fund from the North Gauteng High Court.  Reports were obtained from expert witnesses including an actuary’s report, eventually the Road Accident Fund conceded and a settlement was agreed to in terms of which the Road Accident Fund paid R3.3 million to Mrs. M and her family.

Although Mrs. M. and her children can never be fully compensated for the loss of a father and a husband, we were able to ensure that their financial future is secure.

(23/05/2014)

Appeal tribunal finds that injuries are serious

On the 14th of June the Health Professions Councils, RAF appeal tribunal held that they where satisfied that Mr. F’s injuries where indeed serious as defined in the RAF amendment act.

In 2010 Mr F was involved in a serious motor vehicle collision and sustained various injuries which resulted in him requiring a hip replacement.

In terms of the amended Road Accident Fund Act, for a person to qualify for general damages their injury must be accepted as serious as defined. For the injury to be accepted the person must assessed to have a whole person impairment (WPI) of 30% or higher. Alternatively their injuries must be assessed as serious based on what we call a narrative test. Mr F only scored 14% WPI but his narrative test clearly indicated that his injuries should be accepted as serious. The RAF ignored his narrative test and rejected his injuries as not being serious.

We took the matter on appeal to the HPCSA appeal tribunal who found that his injuries where indeed serious. This allowed us to then proceed to court where the court awarded him R463 000 in general damages as well as ordering the RAF to provide an undertaking to cover all his medical expenses that he may incur in the future as a result of the accident.

(14/06/2013)

From herd boy to unlimited opportunity, our persistence changes this client's life

Mr. M.L came from very rural circumstances, he was kept from. Studying to herd cattle and would be allowed to study intermittently as the Custom of the Family was that the elder children sacrificed. He had a Ankle fracture, whilst a 17 year old pedestrian and could not complete school. The RAF offer was extremely poor. On advise from us, he rejected it, the Matter was taken to trial and settled in excess of 15 times greater than the Road Accident Fund had offered and our client was extremely grateful as he looks forward to better his family circumstances.

Attorney delays for 12 years and client gives up until we take over the mandate

Mr. P.M a 30 year old pedestrian had a brain and orthopaedic injury. He had a bright future before a speeding vehicle turned his life upside down, he had completed matric and it had been his intention to study further but due to being the breadwinner of an extended family, he had been working as a security guard. After accident he struggled to cope. He initially gave his mandate to an attorney who advised him that he had no claim, after having had the file for over twelve years.  Mr. P.M then sought our assistance. Campbell Attorneys took over the matter and in a short space of time have settled it for over 1.4 million rands. He now plans to stop work, invest in a business and take care of his family.

From homeless to home owner with a bright future

Ms. O.S was a 16 year old pedestrian.  The eldest daughter with promising younger sibling.  She was living in an informal settlement with no prospects of advancement. She suffered a Tibula and Fibula fracture and fracture to humerus. The RAF offered a paltry R40 000.00 which following our advise and in spite of her dire financial circumstances, she refused. We took the matter to trial and settled at R480 000.00 together with an undertaking to cover her future medical expenses, twelve times the Road Accident Fund’s offer. Our client, Ms. O.S has since stopped by for a visit to happily advise us that she has purchased a home, invested some of her funds and is so happy and grateful at the opportunity given not only for her but for her younger siblings.

Injured child given hope for brighter future
  • Master C.G was a young child when he was struck down by a motor vehicle and suffered a head injury. The injured claimant was the middle child of three and living in a single parent home. They were in a desperate situation with their survival dependant on his mother selling trinkets on the side of the street or charity. The Road Accident Fund however refused to compensate him. Eventually the matter was settled at court for R1 400 000.00 plus an undertaking to pay for all medical expenses After receiving the payout, with our assistance, Master C.G purchased a home and has been seeing an occupational therapist. The balance of his money has been invested. From having no hope the future is now greatly improved for this little boy.

    (5 July 2012)

Perseverance wins against RAF obstinacy

Mr. J.A, 34 year old pedestrian suffered a femur injury. The Road Accident Fund (RAF) repudiates his claim refusing to pay anything alleging the incident was completely his fault. Mr. J.A lost his job and had to depend on social grant and his elderly mother in order to survive. He gave up all hope as the RAF was adamant that as he had been drinking, he was not entitled to any payout. The matter proceeds to trial on liability and Fund ordered to make compensation with appropriate adjustment due to client’s own negligence. At quantum trial, the quantum settles for a million. Mr. J.A looks forward to a new lease on life, purchasing industrial machinery to start a small home business

(19 July 2012)

RAF bureaucratic stance ruins elderly man's life until we step in to bring hope

Mr. M.S was 62 years old when he was struck by a motor vehicle. He suffered multiple orthopaedic injuries. Having no insurance or cover to assist him and now being unable to work due to his injury, he finds himself in a desperate situation, his home was repossessed by the Bank due to his inability to pay the mortgage bond. After a battle against the RAF he has
been absolutely stunned at the final Court settlement of R600 000.00 on general damages. He can now get back his home, invest monies towards his old age and be independent of charity and relatives that have taken advantage of his poor state of affairs.

(3 August 2012)

Road Accident Fund offer of R10 000.00 rejected. A court order was eventually obtained for R1.9 million, 190 times the Road Accident Fund's offer

A minor child was walking on the side of the road when he was struck by a negligently driven furniture delivery vehicle. The matter was initially dealt with by another firm of attorneys before SM’s mother approached us for assistance. The Road Accident Fund had at this stage tendered an offer of R10 000.00 in full and final settlement of young SM’s claim. We took over the file from his previous attorneys and sent him for a multitude of assessments from our panel of medical experts who determined that he had suffered a head injury as a result of the collision. We then proceeded to set the matter down for trial. An order was eventually obtained for 1.9 million together with an undertaking to cover any future medical expenses. We subsequently assisted young SM in purchasing a home and investing the balance to provide him a monthly income for the rest of his life.

(30 August 2012)

Security officer awarding R550 000.00 for a fractured tibia and fibula

Mr. CR was a security officer who was a pedestrian when he was struck by a vehicle. The vehicle failed to stop and fled the scene. The claim was submitted to the Road Accident Fund and unfortunately the most they were prepared to offer was R60 000.00 in full and final settlement. We advised the client against accepting this amount and proceeded to trial. The matter was eventually settled on the day of the trial with client receiving R550 000.00 together with an undertaking to cover any future medical expenses he may incur.

(20 September 2012)

Court awards client more than 100 times the amount of the RAF offer

Mr. M. was a 20 year old pedestrian when he was struck by a motor vehicle. He sustained head injuries. The Road Accident Fund was initially only prepared to offer R14 000.00 in full and final settlement of his case. Campbell Attorneys proceeded to trial in the matter. Before trial, the Road Accident Fund agreed to settle liability with a 20% apportionment against client. The Road Accident Fund then turned around and tried to revoke their settlement which application they subsequently abandoned at court. Despite continuous attempts to have the Road Accident Fund provide client with a fair and just offer, none was forthcoming and subsequently the trial ran. After a three day trial, the court awarded client an amount of R1 431 000.000 after taking into account the 20% apportionment against client.

(22 October 2012)