Application of the Maxim “RES IPSA LOQUITOR” in MVA claims

Dear Reader,

Welcome to the fifth 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. We will also keep you updated of IAC developments, events and training seminars and lighten up your day with a joke or inspirational quote.

ANNOUNCEMENT
Thanks to you, our valued clients, IAC’s MVA department has experienced it most successful month ever. In acknowledging your great support and in an effort to improve our service to you even further we have appointed three new members off staff who will be dealing with the loss of income and loss of support calculations, they are:

1. Danai Ru’nanga- BComm. (Hons) Actuarial Science
2. Maureen Kumwenda- BSc. (Mathematics and Statistics) currently doing honours in BSc. (Computational Finance)
3. Siyanda Ngquba- BSc. (Mathematics and Statistics) currently doing honours in BSc. (Computational Finance).

We also wish to inform you that Mr Johan Olivier, the head of our MVA department, has decided to bid IAC farewell after seven years of dedicated service. We wish Johan well with his future endeavors. We are proud to announce that due to the depth of actuarial professionals at IAC we were able to fill the position from within our own ranks. Mr Wim Loots will be taking over as head of the MVA department from 2 November 2009.
Wim has been with IAC since 2005. He has intimate knowledge of IAC’s clients, processes and people and brings with him a wealth of experience. Wim obtained his B.Sc. in Actuarial science cum laude in 1993 from the then Rand Afrikaans
University (RAU). He is a fellow of the institute of actuaries in England and a fellow of the actuarial society of South-Africa. Wim we wish you Danai, Maureen and Siyanda well and look forward to working with you. These are exciting times full of promise and we are proud to share them with you our valued clients.

THE ROAD ACCIDENT FUND v MEHLOMAKULU 2009 (5) SA 390

This is an appeal against a declaratory order that the RAF (the fund) is liable to compensate the respondent (plaintiff a quo) for serious bodily injuries sustained in a collision on 26 April 2003. I will refer to the appellant as the fund and the respondents as the plaintiff. The facts were that two insured vehicles collided with each other on a curve on the national road at night time without lights (first collision) and, as the plaintiff’s vehicle entered the curve, it collided with the stationary insured vehicles (second collision). The drivers of the insured vehicles died on the scene. The particulars alleged that the drivers of the insured vehicles were negligent in: (1) causing the
first collision, and the second collision was a direct consequence of the first collision; alternatively, (2) causing their vehicles to be and remain, a hazardous and unlighted obstruction on the roadway. The court a quo invoked the res ipsa loquitor maxim and found the drivers of the insured vehicles had been negligent in causing the first collision.

For the sake of clarity the learned Jones J included the following extracts from W E Cooper’s Motor Law vol 2 “Principles of Liability” (Juta, 1987) which I repeat: ‘It is said res ipsa loquitor when: “… human experience shows us that in certain circumstances it is most improbable that the occurrence under investigation would have taken place without negligence.” ’ Mr Cole who appeared for the plaintiff in the trial and subsequent appeal based his argument on the fact that two vehicles collided on a wide, tarred national road in circumstances where the road surface was good and the weather fair, which gives rise to the inference that one of them must have deviated from its path of travel into that of the other. He also submitted that generally a roadworthy vehicle under the control of a skillful driver will behave in a manner consonant with the basic traffic rules (Macleod v Rens 1997 (3) SA 1039 (E) ). His suggested conclusion was that the occurrence of the first collision was such that res ipsa loquitor.

The court held that Mr Cole makes the mistake of seeking to infer negligence by reason of the maxim from an occurrence which’s nature does not make a conclusion of negligence inevitable. Following Mr Cole’s reasoning a claimant in a damages claim following any road accident would be able to rely on evidence of a collision without more for an inference of negligence in his favour, making the maxim of general application to road accident cases, and a nonsense of the rule that the onus is on the claimant to prove his case. The court rejected the conclusion. As to the second averment, namely that they caused their vehicles to be and remain, a hazardous and unlighted obstruction on the roadway, these averments makes out a case based squarely on the presence of a dangerous hazard in the road. The plaintiff proved that case. His evidence established that as he drove round the bend he was suddenly confronted with an unlighted vehicle in his path making it impossible to avoid a collision. In the court’s opinion this was clearly an occurrence of which can be said res ipsa loquitor. The evidence of the occurrence raises a prima facie inference of negligence on the part of the person in control of the stationary vehicle with which he collided.

According to the court it is then up to the fund to explain how the obstruction got there, what was it doing there and why it was still there when he arrived. If no explanation is given then it compels an inference of negligence. The court held, on the alternative, that a prima facie inference of negligence arose res ipsa loquitor, (a) from causing such an obstacle to be in the middle of the road at night, and (b) from allowing it to remain there. There was nothing at all before the court to displace the inference of negligence from (a), and insufficient information to displace the inference from (b).
Appeal dismissed.

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And I leave you with a bit of inspiration for this, the last push towards the end of the year –
“Always bear in mind that your own resolution to succeed is more important than any
one thing” – Abraham Lincoln