Road Accident Fund

Question 1

Against who must the claim be brought under common law?

Answer 1

Against the driver

Question 2

What is the function of the act?

Answer 2

This act transfers the liability from the drive to the road accident fund.

Question 3

Who may claim from the act?

Answer 3

Only the victim of a road accident can claim- the negligent driver does not have a claim under the RAF.

Question 4

What is the aim of the RAF?

Answer 4

Section 3: The fund shall be the payment of compensation in accordance with this act for the loss or damage wrongfully caused by the driving of motor vehicles.

Aetna Insurance v minister of Justice 1960: Primary objective is to provide the greatest possible protection to persons who have suffered loss through a negligent or unlawful act on the part of the driver or owner of a motor vehicle.

Question 5

What is the Liability of the fund?

Answer 5

The key provision of the current compensation scheme is section 17(1) of the RAF Act, which provides:

• The fund or an agent shall be obliged to compensate any person for loss or damage that the third party has suffered.
• As a result of any bodily injury to him/ her or the death or bodily injury of any other person.
• That was caused or arose as a result of the driving of a motor vehicle.
• Fund only compensates for serious injury and a lump sum is paid.

Question 6

What is the effect of section 17(1) of the fund?

Answer 6

The liability of the Fund replaces the liability of the driver, or owner or owner’s employee that would have otherwise existed at common law, except where the Fund is unable to pay compensation.

Question 7

What is a third party?

Answer 7

• Any person who would have a common law claim for damages from bodily injury arising from a road accident.
• An injured person and the dependant of the person that died in the accident.
• People included in “third party”:
  1. Person injured in road accident
  2. Dependant of a person that died in the accident.
  3. Unborn child (Foetus in utero)

Question 8

What are the key concepts of the Liability of the RAF?

Answer 8

• Third party
• Loss or damage
• Bodily injury
• Motor vehicle
• Driving
• Caused by or arising
• Negligence or other wrongful act
• Any place within the Republic

Question 9

Which types of damages are the Fund liable for?

Answer 9

The Fund is liable only for harm (‘loss or damage’) that arises from a bodily injury or death and therefore not for property damage.

Question 10

Name examples of patrimonial harm compensable under the Act.

Answer 10

• Hospital and medical expenses
• Loss of income
• Loss of earnings
• Loss of support
• Funeral and cremation costs
• Travelling expenses
• The cost of a nurse or an aide.

Question 11

Name examples of non-patrimonial harm that a third party may claim.

Answer 11

Pain and suffering
Psychological trauma
Emotional shock
Disfigurement
Loss of the amenities and enjoyment of life
Loss of general health
Shortened life expectancy.

Question 12

Is the Fund’s liability limited to only public roads?

Answer 12

The liability of the Fund can arise from accidents ‘at any place within the Republic’, and not only on public or other roads.

The accident must involve the ‘driving’ of a ‘motor vehicle’.

Question 13

Define Fault-Based Liability.

Answer 13

the plaintiff has to prove ‘negligence or other wrongful act of the driver or of the owner of the motor vehicle or of his or her employee in the performance of the employee’s duties as employee’. It can also be related to the maintenance or use of the vehicle by the owner or an employee of the owner in the performance of duties.

Question 14

Is psychological harm included under “Bodily Harm”?

Answer 14

Bester v Commercial Union Versekeringsmaatskappy 1973: Psychological harm is included- the brain and nervous system are part of the body.

Requirement for psychological injury: It must be detectable, recognizable and it must not be passing or trivial.

Question 15

What is a secondary victim?

Answer 15

A person who was not directly injured in the accident but who suffered psychological harm through injury of a person with whom she had close emotional ties

Question 16

Can a secondary victim claim for psychological harm?

Answer 16

No, Incurred psychological harm when witnessing accident or was informed of injury of death of another person due to an accident is not claimable by the secondary victim

However, this exclusion does not apply to a person who was actually injured in accident and accordingly suffered psychological harm.

Question 17

What is a third party’s claim for serious injury?

Answer 17

A Third party may only claim for non-patrimonial loss, such as pain and suffering, where she sustained a serious injury.

An injury is considered serious if there is 30% or more impairment of the whole person as provided in AMA guidelines.

Question 18

When are injuries NOT considered as “serious”?

Answer 18

Whiplash neck injury
Mild sprain/torn ligament or joint.
Lacerations, cuts (Only if there is no disfigurement).
Complete or partial amputation of the little finger.
Damage or loss of any number of teeth

Question 19

Name the different types of Patrimonial Loss claimable by the plaintiff:

Answer 19

• Patrimonial loss from personal injury (Medical expenses)
• Patrimonial loss from injury to another (Parents incurring medical cost for their kid involved in an accident)
• Loss of income
• Loss of support caused by the death of the breadwinner.

Question 20

Name the excluded forms of patrimonial loss:

Answer 20

1) Tin-damage (Blikskade)
2) Personal items in the car

Question 21

Define joint wrongdoers:

Answer 21

Persons who are jointly and severally (separately) liable for the same harm

Question 22

What is the ceiling amount for the Claim for Loss of income or loss of support?

Answer 22

R327 107

Question 23

Where there is a loss of support the following needs to be proven:

Answer 23

1) Breadwinner owed a duty to support to plaintiff
2) Deceased breadwinner did support the plaintiff.

Question 24

Meaning of term “motor vehicle” is fundamental to liability of RAF, because…

Answer 24

RAF can only be liable if injuries or death are caused by driving of motor vehicle

Question 25

What is the meaning of a motor vehicle?

Answer 25

“Motor vehicle” means 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 also includes a trailer, caravan or implements designed or adapted to be drawn by a motor vehicle

Question 26

What are the requirements for the definition of a "motor vehicle"?

Answer 26

Vehicle must be: - propelled in a particular way (fuel/gas/electricity) - designed in a particular way (for propulsion/haulage on a road)

Question 27

What was the outcome of Chauke v Santam Limited 1997 1 SA 178 (A)?

Answer 27

Held that just because a vehicle can be used on a road, does not mean or imply that it was designed for propulsion on a road.

Question 28

For a vehicle NOT to be regarded as a “motor vehicle”:

Answer 28

The ordinary reasonable person would perceive that the driving of the vehicle on a road used by pedestrians and other vehicles would be: - extraordinarily difficult and hazardous - unless special precautions or adaptations were effected

Question 29

The following ARE considered as "motor vehicles"?

Answer 29

➢Large 75 ton mining vehicle used exclusively on mine roads ➢Off-road quad bike ➢Petrol driven six seat golf cart employed as a shuttle on premises of hospital to ferry persons from the parking area to the hospital

Question 30

The following ARE NOT considered as "motor vehicles"?

Answer 30

➢Ride-on lawnmower ➢Miniature racing car ➢Hobart Mobile Ground Power vehicle used to start aircraft at airport

Question 31

Meaning of a "road":

Answer 31

RAF v Mbendera/ Bell v RAF 2007: SCA held that a road can not be narrowly defined to mean only a public road. Berry v SPE (Security patrol Experts) 2011: Parking area at a hospital used by pedestrians included in the definition of road

Question 32

Define the word "driving"

Answer 32

Driving refers to any voluntary conduct which - directly sets a stationary vehicle in motion and - is directed to control the motor vehicle after it has come into motion Driving also includes “all other acts reasonably or necessarily incidental thereto, such as the starting of the engine and the manipulation of the controls which regulate the speed and direction of the vehicle and those which assist the driver and other users of the road, such as lights and traffic indicators”.

Question 33

List the presumptions of driving as set out in section 20 of the RAFA

Answer 33

* motor vehicle concerned was not propelled by its own engine * where it is not clear whether the vehicle was driven or who drove the motor vehicle * A person who has placed or left a motor vehicle at any place will be presumed to be driving that motor vehicle while it moves from that place as a result of gravity * Whenever any motor vehicle has been placed or left at any place, it be presumed that such vehicle was placed or left at such place by the owner of such vehicle.

Question 34

What is the difference between “caused by or arising from driving of a motor vehicle”?

Answer 34

“Caused by” = direct factual link between driving of motor vehicle and harm (e.g. Deliberate act of pushing passenger off moving bus) “Arising from” = indirect cause of harm (e.g.injury from fire following accident)

Question 35

Is RAFA liable for negligence?

Answer 35

Section 17(1) - RAFA is still liable where there is negligence

Question 36

What is the test for negligence?

Answer 36

The driver is negligent if a reasonable person in his/ her position: 1) Would have foreseen the reasonable possibility of his conduct injuring another or causing loss 2) Would have taken reasonable steps to prevent the occurrence.

Question 37

What are the claims that are excluded under section 19(3) of RAFA?

Answer 37

1. Where the prescribed procedure for a claim in terms of section 24 was not followed. 2. Where the injured person unreasonably refuses to subject herself/ himself to medical examination. 3. 3rd party claims for damage or loss … suffered as a result of emotional shock sustained by that person when that person witnessed or observed or was informed of the bodily injury or the death of another person as a result of the driving of a motor vehicle

Question 38

What is the aim of section 18(2) of RAFA?

Answer 38

Avoids “double compensation” of the plaintiff Sec 18(2) implies that the amount of an employee’s claim under RAFA must be reduced if the employee also receives compensation in terms of COIDA

Question 39

When does Prescription start?

Answer 39

Where injuries not fatal: claim originates and prescription starts to run on the date of collision Where fatal: dependant’s claim originates and prescription starts to run on the date of death of breadwinner

Question 40

What are the 2 types of Road Accidents?

Answer 40

Where identityof driver/ owner of motor vehicle has been established; Where identity of neither the owner nor the driver of motor vehicle has been established (so-called “hit and run” accidents)

Question 41

After how many years does the right to claim compensation prescribe where the identity of the driver is KNOWN?

Answer 41

3 Years

Question 42

After how many years does the right to claim compensation prescribe where the identity of the driver is UNKNOWN?

Answer 42

2 years