Archive | September 2009

SCA rules that claim for additional injury discovered after institution of action does not constitute a new cause of action

Dear Reader,

Welcome to the third edition of Independent Actuarial Consultant’s (IAC) monthly newsletter. Via this newsletter we will keep you updated of all the latest case law relating to motor vehicle accidents and the quantification of damages relating to personal injury claims.

Please note that due to the massive interest we have received in relation to the training sessions in Johannesburg, Pretoria, Durban and Cape Town during the recess period of 28 September 2009 to 2 October 2009 WE HAVE EXTENDED THE DEADLINE FOR RECEIVING YOUR CONFIRMATION OF ATTENDANCE TO 9 SEPTEMBER 2009.

A further e-mail, enclosing the confirmation of attendance form, will follow.

NONKWALI v THE ROAD ACCIDENT FUND 2009 (4) SA 333

On 16 October 2001 a motor vehicle in which the Appellant (plaintiff’s a quo) was a passenger was involved in a collision as a result of which she sustained serious bodily injuries. She instituted an action for damages against the appellant (the Road Accident Fund) in the Mthatha High Court which was duly defended. The Appellant amended her pleadings, without objection, on 10 June 2005, almost four years after the collision, to include a claim for damages consequent upon a head injury allegedly sustained as a result of the accident. The head injury was not previously listed in her claim form and accompanying medical report as it was discovered subsequently. The Respondent filed a special plea alleging that, in respect of the head injury, the Appellant had not complied with s 24 in that it failed to specify such injury. In the alternative that such claim was prescribed in that it was instituted more than three years after the accident.

The Court a quo upheld the special plea on the main ground, on the basis that the Appellant was obliged to first submit an amended claim form to the Respondent before amending her pleadings so as to enable the Respondent to investigate whether or not the head injury was sustained as a result of the accident. The Court further held that even if it had decided the main question in favour of the Appellant, such claim would be unenforceable by reason of prescription. On appeal it was submitted on the Appellants behalf that she substantially complied with the provisions
of s 24 of the Act as she completed the claim form in good faith and filled in all details as was available to her at the time. Counsel further contended that the additional claim was merely a new item of damages and not a new cause of action and therefore it was not necessary to amend her claim form to avoid prescription.

Counsel for the Respondent contended that s 24 obliged the Appellant to submit a claim form, including a medical report, in respect of the head injury. Her failure to do so was fatal as it meant no claim had been lodged in respect of the head injury. The Court could not agree with the Respondent’s submissions as the fact that the head injury had not been diagnosed when the claim form had been completed and submitted was not in issue It was further not in dispute that the Appellant had placed all the facts available to her at the time at the Respondent’s disposal. There is no basis on which it can be found that the Appellant did not comply with s 24 of the Act.

As regards the alternative argument of prescription the Court held that authorities are legion to the effect that a plaintiff who claimed compensation for damages sustained due to wrongful and negligent driving under the Act had but a single indivisible cause of action and the various items constituting the claim were thus not separate causes of action. In the event the Appellant’s claim in relation to the head injury did not constitute a new cause of action
but was merely an additional item to her original cause of action. The Appellant’s amendment to her summons did, therefore, interrupt the running of prescription in respect of the further claim and it was not necessary for her to lodge an amended claim form.

Appeal upheld with costs.

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And I leave you with two parting jokes for the month –
A stingy old lawyer who had been diagnosed with a terminal illness was determined to prove wrong the
saying, “You can’t take it with you.”
After much thought and consideration, the old ambulance-chaser finally figured out how to take at least
some of his money with him when he died. He instructed his wife to go to the bank and withdraw
enough money to fill two pillow cases. He then directed her to take the bags of money to the attic and
leave them directly above his bed. His plan: When he passed away, he would reach out and grab the
bags on his way to heaven.
Several weeks after the funeral, the deceased lawyer’s wife, up in the attic cleaning, came upon the two
forgotten pillow cases stuffed with cash.
“Oh, that darned old fool,” she exclaimed. “I knew he should have had me put the money in the
basement.”

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