Paper 1: RAF Flashcards
(106 cards)
1
Q
What is the definition of a motor vehicle?
A
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.
2
Q
In what instance can a claimant not claim the balance of loss of support from the wrongdoer?
A
Where the claimants annual loss of support exceeds R160 000, they cannot claim the balance/ shortfall from the wrongdoer ito the common law.
3
Q
What is the definition of a road?
A
A specially prepared track between places used by pedestrians , riders and vehicles (Chauke v Santam Ltd)
4
Q
What vehicles do not qualify as a motor vehicle?
A
- lawnmower
- midget racing car
- go kart
- self propelled vehicle designed to provide power to a jet
- forklift
- midget oval track racing vehicle
5
Q
What two unusual vehicles do qualify as motor vehicles ?
A
- a six seater golf cart shuttle
- a quad motor cycle
6
Q
What 5 questions would you ask to assist you in establishing the merits or liability in an RAF matter?
A
- 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
7
Q
What 5 questions would you ask which would assist you in establishing the quantum of damages in an RAF matter? (where the person died)
A
- 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
8
Q
What is the object of the Road Accident Fund?
A
To compensate persons for bodily injuries or death caused by or arising from the negligent driving of a motor vehicle.
9
Q
Who does the Road Accident Fund Act indemnify?
A
Wrongdoers / Negligent Drivers / Owners of motor vehicles.
10
Q
Who is entitled to lodge a claim against the Road Accident Fund?
A
All road users within South Africa are covered by the provisions of the RAF Act.
11
Q
Are foreigners entitled to lodge claims arising from bodily injuries or death arising from motor vehicle collisions on South African roads?
A
yes
12
Q
From where does the Road Accident Fund receive its income?
A
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.
13
Q
what is the difference between general damages and special damages?
A
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
14
Q
give examples of special damages
A
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
15
Q
What options are available to the RAF upon receipt of the RAF Form 4?
A
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).
16
Q
Section 1 of the RAF Amendment Act, describes the “owner” of a vehicle. List the categories of persons described as “legal owners”.
A
- 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.
17
Q
Describe a “Driver” as stipulated in terms of Section 1 of the RAF Amendment Act.
A
The driver is the person who, for purposes of the RAF Act, drives the vehicle within the meaning of Section 17 of the Act .
18
Q
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?
A
(1) 6 November 2021
(2) 6 November 2023
19
Q
what documents would you submit to the RAF when you lodge a claim?
A
- 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
20
Q
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
A
- Orthopedic surgeon (1)
- Occupational therapist (1)
- Neurosurgeon / neurologist
- Industrial psychologist (1)
- Actuary
- Plastic surgeon
21
Q
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
(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)
22
Q
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)
A
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)
23
Q
Can a life partner claim loss of support in an RAF claim?
A
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)
24
Q
Can a life partner claim loss of support for minor children?
A
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).
25
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.
26
List four non-deductible collateral benefits.
1. Benefits derived from insurance and assurance policies maintained by the third party or bread winner;
2. Insurance and pension benefits payable to dependant’s;
3. All ex gratia payments of whatever nature;
4. Money obtained from a child grant.
27
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
28
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).
29
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
30
where would you lodge the a road accident fund claim
the claim can be lodged with any of the branch offices of the RAF
31
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
32
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
33
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.
34
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
35
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
36
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)
37
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.
38
Is loss of a foetus considered general damages?
yes - it is an express ground in the narrative test
39
what is the limit of the claim for loss of support
160 0000, excess cannot be claimed from the wrongdoer
40
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
41
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.
42
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.
43
David was driving a vehicle when a car swerved into is lane involving him in a head on collision. Can he claim from the RAF?
yes even though he was driving it was the negligence of the other driver that caused the collision
44
David was driving a vehicle when a car swerved into is lane involving him in a head on collision. He is now in a coma - who will lodge a claim on his behalf?
D will not be able to act on his own behalf as he is in coma and does not have capacity. Thus a curator ad litem will be appointed to lodge the claim on his behalf.
45
Oliver was involved in a mva and is now a paraplegic - he is a minor - who will lodge a claim on his behalf
either of his parents as natural guardians or curator ad litem
46
Can past medical expenses paid by medical aid scheme be recovered from the RAF
yes the payment from a medical aid scheme is a collateral benefit and as such does not preclude recovery from the RAF
47
Can past medical expenses paid in someone's personal capacity ie father of a minor be recovered from the RAF?
yes as they incurred the expenses and is entitled to recover them. You are entitled to recover medical expenses from the RAF whether they have been paid by the medical aid scheme or not not as such payments are insurance payments and are considered collateral payments that do not fall to be deducted by the RAF.
48
David was driving a vehicle when a car swerved into is lane involving him in a head on collision. Assume that David was also to blame because he was on his phone. How would this affect david and his passenger's claim?
David's claim would be apportioned by 50%.
49
How long after an accident does someone have to lodge funeral expenses as a claim from the RAF?
3 years from the date of accident (prescription)
50
When must a claim for a minor be lodged in terms of the RAF
3 years from the age of majority (will be suspended until he reached age of majority)
51
Can a step father act on behalf of a minor if they are not their guardian?
NO, a minor's claim must be lodged by the natural parent and guardian. A step father will not have the necessary locus standi to act on their behalf. If there is no guardian a curator ad litem needs to be appointed.
52
list 4 heads of damages for a claim
past medical expenses , future medical expenses, future loss of earnings, general damages (also loss of support)
53
can a victim of primary emotional shock recover from the RAF
yes the psychological sequelae of a physical body injury suffered by a primary victim is deemed to be a bodily injury and is not excluded by the act
54
Mr X is in an accident - the vehicle he was travelling in was driven by his employer - how would this affect his claim from the RAF?
His claim against the RAF will fall away as in terms of s 35 (1) of COIDA, an employee has no common law claim against his negligent employer. In terms of s19(a) the RAF is not liable if the owner or driver of the vehicle is not liable. Mr X must claim from the Compensation Commissioner.
55
Mr X is injured in an MVA while on duty in a truck driven by a fellow employee. He lodged a claim against the RAF and the Compensation Commissioner ito COIDA. how will this affect his RAF claim?
The final award by the compensation commission should be deducted from the total damages as agreed with the RAF or ordered by a court.
56
can a person rectify a failure to submit to medical examination?
yes the claimant can submit himself for a medical examination or supply medical records
57
how long is the period that the RAF can pay the future medical and hospital expenses and who must they pay
- 5 years from date on which cause of action arose
- can pay either claimant or medical service provider directly
- a claim for loss of support is capped at 160 000
58
what happens if the RAF form 1 is lodged without a medical report?
it has no legal effect and the claim may prescribe
59
when has a claim been delivered to the RAF
delivery by hand is deemed to have taken place when RAF is in possession of the claim ie the moment it is placed in the wooden box in the foyer of the RAF building where they receive documents
60
what steps would you take when your claim is about to prescribe and you cannot access medical records
You can have the claimant examined by a medical practitioner who has:
(1) fully satisfied himself regarding the nature and treatment of the bodily injuries iro of the claim made
(2) prepare a medical report
61
what are the methods of delivery to the RAF
- by registered post or by hand to the principal or a regional branch
62
how many days do you have for delivery of a claim to the RAF?
60 days
- post from date of posting
- hand from date of delivery
63
what is the period of prescription for an identified claim
3 years (extended by 2 years if valid claim lodged before expiry period)
64
what is the period of prescription for an unidentified claim
2 years (extended by 3 years if valid claim lodged)
65
what is the period of prescription for third party claims
5 years
66
how can you interrupt prescription in terms of RAF/ how soon after a claim has been lodged with the RAF can a summons be served and under what circumstances
serving the summons interrupts prescription but must wait 120 days to serve the summons (120 days from when claim was sent or delivered by hand to RAF) unless the RAF repudiated in writing before the 120 days lapsed.
67
your client was involved in a motor vehicle collision and you are instructed to lodge a claim against the RAF. what steps would you take to motivate your client's claim for general damages?
I would have client examined by medical practitioner who will complete the RAF 4 form (within 5 years from date of collision)
68
what documents would you submit with RAF 4 where a spouse dies and other spouse fully dependent, have minor children etc.
- marriage certificate
- death certificate
- birth certificates of children
- ID of wife and deceased
- inquest record or charge sheet
- post mortem report
- certificate of earnings of the deceased
69
what averments must a spouse with minor children make for a loss of support claim as a result of husband deceased
- deceased married to plaintiff
- minor children born from marriage
- during lifetime deceased had duty of support which he upheld
- as a result of death = loss of support and suffered damages
70
up until when can a widow and minor children claim loss of support
```
widow = date of deceased death until when he would have retired
children = until the age in which they attain majority
```
71
in calculating the claim for a loss of support, what amount will you use to determine the deceased's annual income and how will you apportion that income amongst dependents
Ito s17(4), annual loss irrespective of actual loss is calculated as amount in GG iro each deceased bread winner in a claim for loss of support (amount adj and takes inflation into account).
That amount is taken as the annual income of the deceased and is appt 2 parts for each parent and one part for each child.
72
If the husband dies in a car accident and he was also negligent will the apportionment of damages affect the loss of support claim
no - RAF cannot apply apportionment iro deceased's negligence to the claims. The widow and children are innocent claimants and only have to prove a degree of negligence on the part of the other driver to succeed in full.
73
if the RAF makes a settlement offer, the RAF fails to pay but your client passes away before summons is served - must the RAF still pay
the settlement offer was a binding contract between deceased and RAF. Death does not release the RAF from the contract and obligation to pay the amount. The fact that summons has not been served does not affect this obligation.
74
you act for mary and had power of attorney, mary dies - can you still act on her behalf?
no POA lapses on death, executor of estate will act on her behalf
75
If the RAF makes a settlement offer and your client passes away before acceptance must the RAF still pay?
claim falls away as a result of death, RAF would be justified in refusing to pay
76
your client is a wheel chair user as a result of a MVA, he earns a salary of 420 000 - can he claim loss of income from RAF?
no - capped at amount not exceeding amount published in GG quarterly.
77
if your client is unable to recover full damages from the RAF can he claim from the wrongdoer
In terms of the RAF Act, a common law claim against the wrongdoer has been expressly excluded
78
How many days does the RAF have to object to an RAF 4 form
90 days from date sent by registered post or hand delivered to RAF, must reject or accept or dipsute further assessment
79
can a client dispute whether injuries sustained are of a serious nature or not in the court out of which his action was instituted?
NO ito regulations this claim must be adjudicated by appeal tribunal constituted by registrar of Health Professionals Council of South Africa (within 90 days)
80
when can a client recover costs from the RAF?
client entitled to costs once matter litigated and costs ordered by the court.
81
what happens when a claim is lodged as an identified claim and it becomes clear that the owner or driver of the vehicle cannot be identified?
does not need to be relodged but need to notify RAF that claim is now an unidentified claim. If the claim was lodged within the 2 years from date of cause of action then not prescribed if after 2 years - claim prescribed.
82
what claim would minor children be entitled to upon the death of their mother in a motor vehicle accident?
entitled to loss of support claim if they were dependent on their mother at the time of her death
83
Can the RAF deduct amounts received as child support grants from settlement offer/ claim for loss of support
No they are not entitled to deduct these claims, clients must reject settlement offer and send counter proposal to RAF increasing the claim or proceed with summons for full amount from RAF
84
your client is injured in a mva and sustains serious brain injuries and is not able to handle his own affairs - will he qualify for general damages
yes it is clear that he sustained serious brain damages and it will be established that he has a 30% or higher whole person impairment as he is not able to manage his own affairs.
85
your client is injured in a mva and sustains serious brain injuries and is not able to handle his own affairs - what documents must be lodged with the RAF?
```
RAF 1 claim form
RAF 1 medi report
RAF 4 serious injury assessment form
sworn affidavit on circumstances of accident
medical and hospital records
```
86
your client's ex husband was killed in a mva - can she claim loss of support
yes as in santam v henery
87
your client's ex husband was killed in a mva - can she claim loss of support if she remarried?
loss of support claim is not affected by remarriage only calculation of the claim, if she was entitled to more than what her current husband provides her with then she can claim the difference as loss of support
88
your client is injured in a motor vehicle accident . he was placed under sequestration. he died before close of pleadings - can the executor continue with claim for general and special damages?
yes if litis contestatio has been reached the executor can continue with the claim, both the damages will form part of the deceased's estate.
if not reached executor can only proceed with special damages claim.
89
what does the RAF need to plead to benefit from s1 (a) of the Apportionment of Damages Act?
Contributory negligence - RAF denies negligence on the part of the insured driver as alleged by the plaintiff and if negligence is found then the RAF pleads that the plaintiff was contributorily negligent and sets out such negligence. (does not need to set out extent - court will decide)
90
Assume your client has 200 000 damages and it is found that he was 30% negligent, what will the RAF pay in compensation
200 000 - 30% apportionment of R60 000 = 140 000
91
what must a passenger prove ito negligence when both the driver of her vehicle and other vehicle were negligent in the mva
1% negligence on the part of either driver, as long as she was not at fault and was wearing a seatbelt - she can claim full damages without limitations [except (general damages - if serious injuries or loss of earning (capped).]
92
what must be served on a third party ito rule 13(3) (a) of the High court rules
third party notice and all pleadings filed thus far
93
when must a third party notice be served
before close of pleadings (can be served later with leave of the court to do so)
94
what relief is sought by the RAF through a third party notice
can be a declaratory order in respect of apportionment of fault between wrongdoer driver and third party. RAF is obliged to pay the plaintiff but may recover from third party as per the declaratory order.
95
what are degrees of negligence to be proven iro passenger claim and driver claim
passenger 1% on insured driver (apportionment is not possible)
driver 100% to avoid apportionment (apportionment possible depending on the degree of negligence of both drivers)
96
for a serious injury what must a claimant prove
30 % of more WPI or fall within the narrative test
97
what is the narrative test
- serious long term impairment or loss of a body function
- permanent serious disfigurement
- sever long term mental or behavioral disturbance or disorder
- loss of foetus
98
your client was injured in a mva but was found not to have 30% wpi or more body impairment. under what circumstances can they still claim for general damages
able to prove the narrative test (set out)
99
list 4 non deductible collateral benefits
- benefits - insurance or assurance parties maintained by 3p or breadwinner
- insurance and pension payable to dependent
- ex gratia payments
- money obtained from child grant
100
what is an RAF 1 form
claim for compensation with accompanying medical report
101
RAF 2 form
claim form for suppliers
102
RAF 3 form
insured driver's statement and sketch plan
103
RAF 4 form
serious injury assessment report for general damages
104
RAF 5
notification of dispute relating to a serious injury assessment report for general damages
105
in the mag court in a trial arising out of a mva, the court cannot decide which witness to believe. what will the mag order?
Absolution from instance with plaintiff to pay the costs.
106
in the mag court in a trial arising out of a mva, the court cannot decide which witness to believe and the mag orders absolution from the instance - a new witness comes forward, what action can the plaintiff take?
they can start a new action
