NPD rules on meaning of “delivered by hand” in S 24(1)(b) OF RAF ACT 56 of 1996
Dear Reader,
Welcome to the fourth 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.
I would like to thank all the members of the legal community who took time from their busy schedules to join us at the various training sessions and trust that what you learnt will assist you in practice. In all we had 182 attorneys who attended the training sessions in Johannesburg, Pretoria, Durban and Cape Town.
I would especially like to thank all the attendees for their various e-mails in which they praised us for the manner of presentation and content of the training material. With such a positive reponse from our readers we will definitely keep investing in future training sessions.
CHETTY v THE ROAD ACCIDENT FUND 2009 (5) SA 193
In the afternoon of the last day (28 March 2002) before the Appelant’s (plaintiff a quo) claim for compensation would have become prescribed the Appelant’s attorney attempted to deliver the claim by hand at the Respondent’s office. However, the Respondent’s office had closed at noon in accordance with its practice to do so on the day before a public holiday.
The attorney was refused access to the building by the security guards and instructed to deposit the claim in a wooden box in the foyer the Respondent used to receive documents. She did so and left. The Appelant subsequently instituted action in the magistrates court to which the Respondent raised a special plea of prescription as they contended that the claim had only been lodged on 4 April 2009. This was based on the contention that the Appelant did not comply with S 24(1)(b) of the Act which states that a claim shall “…(b) be sent by registered post or delivered by hand to the fund at its principal, branch or regional office… and the fund … shall at the time of delivery by hand acknowledge receipt thereof and the date of such receipt in writing.”
The special plea was upheld by the magistrate in the court a quo. The Appelant appealed to the Natal Provincial Division. The Appeal turned on whether depositing the claim in the box in the foyer amounted to delivery of the
claim to the Respondent on the day on which it was deposited or not. No evidence was led by the Respondent to gainsay that of the Appelant’s attorney as set out above. Accordingly the court held that what was required for delivery by hand in terms of s 24(1)(b) was that delivery takes place when a person is placed in possession of the relevant documentation. In the present matter the Appelant had to prove that depositing the claim in the wooden box amounted to the respondent being placed in possession of the claim. The court further held that the physical and mental elements of possession were present as the Respondent had physical control over the box and one of the Respondent’s claims handlers gave evidence that the Respondent regarded documents deposited into the box as having been received the
day they were placed there The Respondent had thus been placed in possession of the claim when the Appelant’s attorney
deposited the claim by hand in the box.
Appeal upheld with costs.
Sending us an Instruction
Our dedicated full time professional team receive instructions by any of the following means:
• Fax : (021) 422 4378,
• Email : damagesclaims@iac.co.za, or
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And I leave you with my parting joke for the month –
Q: What’s wrong with Lawyer jokes?
A: Lawyers don’t think they’re funny, and nobody else thinks they’re jokes.
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.
Sending us an Instruction
Our dedicated full time professional team receive instructions by any of the following means:
• Fax : (021) 422 4378,
• Email : damagesclaims@iac.co.za, or
• Post : PO Box 1172, Cape Town, 8000
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.”
SCA rules that dependant who died contemporaneously with breadwinner not a collateral benefit
Dear Reader,
Welcome to the second 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. In keeping with our stated aim of empowering you, the reader, we are proud to announce that we will be presenting training seminars in Johannesburg, Pretoria, Durban and Cape Town during the recess period of 28 September 2009 to 2 October 2009.
For more information please refer to the content underneath the heading “TRAINING’ hereunder.
THE ROAD ACCIDENT FUND v MONANI and another 2009 (4) SA 327
The respondents (plaintiff’s a quo) instituted action against the appellant (the Road Accident Fund) for damages for loss of support flowing from the death of the deceased in a motor vehicle accident.
At the time that he died he had a duty to support and supported his “wife”, the plaintiff’s and another child dependant (Thando) who died in the same accident. The question for adjudication by the Court a quo was whether the death of Thando in the accident constituted a collateral benefit resulting from the accident, for which the Plaintiff’s should not be compensated. The parties were agreed that should the Court find that the death of Thando was not a collateral benefit resulting from the accident, Plaintiff’s would be entitled to receive damages in a further
sum of R 163 428.00, the parties having already agreed the plaintiff’s were entitled to a sum of R 1 389 531.00.
The Court a quo held that the additional amount of R 163 482.00 was payable and gave judgment for the amount of R 1 552 959.00. The fund appealed against the decision to the Supreme Court of Appeal where counsel for the fund contended that the award to the surviving dependants had to be restricted to what they would have received had Thando not died.
During his argument he was willing to concede that if, hypothetically, Thando had died at any time before the deceased then her share would have been distributed between her mother and surviving siblings. However, he was not willing to concede that if Thando had died after the deceased the same situation would have applied save for the such maintenance as would have been appropriated for her maintenance between the date of the deceased’s death and the date on which she died. Counsel hung his hat on the contention that there appeared to be no decided cases in our law which dealt with the computation of compensation in a dependant’s claim where one or more of the dependants died simultaneously with the breadwinner. He therefore asked that the matter be considered res nova.
The court held that the defendant had correctly conceded that if Thando had died before the date of delict, the plaintiff’s would have been entitled to the extra amount of R 163 428.00, and that would also have been the position had she died at any time after the date of delict (save for any amount of maintenance that would have accrued to her between that date and date of her death). There could therefore be no basis, in logic or otherwise, for a contention that since her death occurred contemporaneously with the deceased, the amount of R 163 482.00 should be excised from the award.
Appeal dismissed.
TRAINING
Mr Johan Olivier of IAC, a qualified senior actuary and head of our MVA department, will be presenting training sessions on the computation of a simple loss of income and loss of support calculations.
The aim of the sessions are to acquaint practitioners with the basic premise of an actuarial calculation thereby empowering you to understand the effects of the various factors that play a part in the computation of loss of income and support. This will result in a better understanding of the process and also aid in the settlement of claims.
The dates for the training sessions are as follows:
- Johannesburg 29 September 2009
- Pretoria 29 September 2009
- Durban 30 September 2009
- Cape Town 1 October 2009
Further information will follow. Hope to see you all there.
Sending us an Instruction
Our dedicated full time professional team receive instructions by any of the following means:
• Fax : (021) 422 4378,
• Email : damagesclaims@iac.co.za, or
• Post : PO Box 1172, Cape Town, 8000
And I leave you with two parting jokes for the month –
“Q: What’s the difference between a lawyer and a herd of buffalo?
A: The lawyer charges more. “
Lawyer: “Let me give you my honest opinion.”
Client: “No, no. I’m paying for professional advice.”
Court grants special cost order against RAF
Dear Reader,
Welcome to the first 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. Our aim with this newsletter is to empower you, the reader, with a summary of the latest case law and developments in the quantification of damages field. We will also keep you updated of IAC events and training seminars and lighten up your day with a joke or inspirational quote.
ELOFF and THE ROAD ACCIDENT FUND 2009 (3) SA 27
In an action for damages in the Cape Provincial Division the plaintiff’s attorney had served a notice for further and better discovery in terms of rule 35(3) of the uniform rules of court on the defendant’s attorney.
The designated 10-day period came and went without any response from the defendant’s attorney and the plaintiff’s attorney then wrote a letter to the defendant’s attorney, requiring a reply. Again there was no response. The plaintiff’s attorney launched a further application claiming an order that the defendant reply to the plaintiff’s rule 35(3) notice within seven days. The defendant responded with a notice of intention to oppose “in that said application does not comply with rule 6(5) of the Supreme Court Rules”.
The Defendant’s attorneys addressed a telefax to the plaintiff’s attorney the next day in which it again stated that the plaintiff’s attorney had not given the defendant the prescribed five court days notice, as per rule 6(5) of the Supreme Court Rules, before setting down the matter to be heard and requested that the application be removed from the roll. Attached to the letter was a copy of an affidavit sworn to by a senior litigation officer in the defendant’s employ stating that the defendants was not in possession of the documents requested in plaintiff’s rule 35(3) notice.
Accordingly, on the next day, the court was faced with an opposed interlocutory application in which the only issue was one of costs, as defendant’s rule 35(3) affidavit had been (belatedly and irregularly) delivered. The application was postponed with an agreed timetable for filing of further affidavits and heads. Subsequent to this appearance the defendant served its rule 35(3) affidavit properly on the defendant. An answering affidavit was then filed, by an employee in defendant’s employ who stated that the file had been assigned to him and that he was aware of the contents of the file, wherein the Defendant raised a number of complaints concerning the plaintiff’s claim. A replying affidavit and heads were filed an the matter was set down and argument was heard on the question of who was entitled to costs of not only the original interlocutory application but to those occasioned by what has become a full blown opposed motion, including wasted costs of two previous appearances.
In its answering affidavit defendant alleged that the plaintiff deliberately failed to comply with the provisions of s 19(f)(i) by not submitting the required affidavit by the claimant and a rough sketch of the accident scene. In its replying affidavit the plaintiff annexed the index listing 27 items that accompanied the documents submitted with the RAF 1 form to the defendant. The sixth item of the index was the affidavit by the claimant and the eight item was the police accident report. The defendant further stated that “it is interesting to note that applicant does not allege in his particulars of claim that he complied with all the necessary provisions and time limits of the RAF Act”. In the circumstances the only interesting thing noted by the court was the absence of p4 from the defendant’s copy of the particulars of claim, annexed to its affidavit. The copy jumps straight from par 8.4 on p3 to the words “Dated at Cape TownB” According to the court the oversight might presumably explain why the defendant’s plea had failed to deal with paras 9-12 of the particulars of claim.
Finally defendant alleged that the plaintiff was dilatory in lodging his claim in that he lingered “10 days short of three years” before submitting the RAF 1 form and accordingly in these circumstances the respondent would suffer no prejudice “should rule 35(3) not be complied with at this stage”.
According to the court no explanation was necessary from the plaintiff as he was not out of time. Once action has been instituted, the further conduct of the litigation is to be conducted in terms of the rules of court and the court failed to appreciate how dilatoriness in instituting action would play a role in the requirement to effect discovery in accordance with the rules of court. Accordingly the court held that bearing in mind the defendant’s unexplainable initial delay in responding to the rule 35(3) notice and the subsequent letter requesting compliance; it’s initial
opposition to the application based on a misguided reliance on rule 6(5); and its subsequent affidavit, in which its representatives displayed a regrettable lack of familiarity with the case, compounded by misinformed and nigh reckless averments against the plaintiff’s attorney, all in an attempt to justify its own default, that the defendant should be ordered to pay the costs of the application to compel on the scale as between attorney and client.
Sending us an Instruction
Our dedicated full time professional time receive instructions by any of the following means:
• Fax : (021) 422 4378,
• Email : damagesclaims@iac.co.za, or
• Post : PO Box 1172, Cape Town, 8000
And I leave you with my parting joke for the month –
“What’s the difference between a good lawyer and a great lawyer?
A good lawyer knows the law. A great lawyer knows the judge. “
RAF 
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