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Summary Attorneys Admission Exams - RAF notes - Paper 1 - Court Procedure
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Notes for RAF/Motor Vehicle Accidents - Paper 1 - Court Procedure
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MVASummary of Exams supplemented by course packs
Which Act to Apply
Multilateral Motor Vehicle Accidents Act no 93 of 1989 -All accidents occurring between 1 May 1989
and 30 April 1997
Road Accident Fund Act 56 of 1996 – All accidents on or after 1 May 1997
Jurisdiction
SC or MC
SC >R 100 000
MC > after appointment
WHEN IS RAF LIABLE?
Basic principle - In terms of s17 of the Act the Road Accident Fund is obliged to compensate a person for
any loss or damage suffered as a result of any bodily injury to himself caused by or arising out of the
negligent driving of a motor vehicle by any person at any place within the Republic, if the injury or death
is due to the negligence or other wrongful act of the driver or of the owner of the MV or of his employee
in the performance of the employee’s duties as employee. (2) (Note: These are the main principles
covering any claim and should be mentioned).
If a person is entitled to compensation ito s17, s21 prohibits them from claiming compensation in respect
of that loss or damage from the owner or from the person who so drove the vehicle or his employer unless
the fund is unable to pay the compensation.
The owner/driver is relieved of his CL liability to the extent of the cover provided for in the Act. The
owner/driver may however be sued under the CL for any damages exceeding the sum of limited damages
claimable from the RAF under the Act.
Questions to asked from client in order to establish whether has a claim
1. Does claim comply with Section 17
2. Ask details required to complete paragraphs 3, 4 & 5 of MMF I.
3. Ask details re: vision, speed, look out, attempts to prevent accident, point of impact, damage to cars.
Essential Components of S17
1. Fault
Negligence must be proved.
The plaintiff needs to prove negligence on the part of the driver or owner in order to succeed in the claim.
,Example: In this case it can be alleged that the insured driver should have kept a proper lookout (she
should therefore have seen the children on the other side of the road sooner), have regulated/reduced her
speed accordingly, have applied her brakes sooner, etc.
Therefore, should the tyre have burst unexpectedly and no negligence be proven the claimant will not
succeed in her claim. Should the tyre have burst due to overloading of the taxi or due to the bad run-
down condition of the tyre and negligence be shown on the part of the driver or owner, then the claimant
will succeed.
Driving under the influence
Should a person DUI institute a claim even if accident not his fault? Yes. The sole cause of the accident
was not due to the fact that your client was under the influence of liquor. We are dealing here with
causation and the facts tell us that the other driver was negligent and not your client. The fact that
someone drives a vehicle under the influence of liquor, whilst being a criminal offence is not per se
negligence.
Contributory negligence
The question is whether the child was contributorily negligent. As soon as she turned 7 years of age, there
is the rebutable presumption that she is accountable for her actions, that is culpa capax. This presumption
can however be rebutted by the plaintiff(l).
If it is accepted that the child is accountable for her actions, then the RAF still has the onus of proving
that she was contributory negligent. In this case this should be easy to discharge as she entered the road in
.the path of the oncoming vehicle. Her own version is that she did not look left or right.
Where CN party is not a party to the proceedings
WHERE A has instituted proceedings only in his representative capacity CN can not be pleaded against
him forthwith. Because it is apparent that A was probably, for practical purposes, contributory negligent
inter alia for not keeping proper control over his minor child, in not keeping a proper lookout and
subtracting the attention of the driver of the vehicle by conversing with him. The MMF has a right of
recourse to recover from him in relation to his contributory negligence. This will, however, necessitate
that he must be joined as" a party to the proceedings in his personal capacity.
2. Only for body injuries or death
The plaintiff must have suffered an injury to his body or the injured party died. Bodily injury embraces
mental injury – see Bester v Commercial Union 1973 (1) 769 A and RAF v Sauls
Example: Claim for damaged spectacles, damaged leather jacket, damaged dentures, damaged luggage -
None of these items can be claimed. The fund’s liability ito ofs 17 is limited to claims arising from bodily
injuries or death occasioned as a result of a motor collision.
Prosthesis incl dentures can claimed but only if they are needed as a result of bodily injuries caused by the
accident.
Funeral Costs
, Client is entitled to claim all reasonable costs necessary to cremate the deceased or inter the deceased in a
grave.
In terms of Article 18(4) of the Act, [W] can claim burial costs limited to the necessary costs to cremate
the deceased or to inter the deceased in a grave (1). The items that cannot be claimed are the gravestone,
the wreaths, the cost of telephone calls and the costs publications. An amount of R5 000,00 will
accordingly constitute the necessary compensation in respect of burial expenses.
3. Must have been caused by or arising out of the driving of a motor vehicle
The test is – “If the injury or death would have resulted irrespective of whether the driving had occurred
such injury or death cannot be said to have arisen out of the driving” This is a question of causation i.e.
NAI
3.1 Must be a motor vehicle
A motor vehicle is described in the Act as any vehicle designed or adapted for propulsion or haulage on a
road (1) by means of fuel, gas or electricity and includes a trailer, a caravan, an agricultural or any other
implement adapted to be drawn by such a vehicle (1).
Questions: 1. Would vehicle normally be expected to be on the road. 2. Does vehicle have headlights? 3.
Does it have brake lights? 4. Does it have direction indicators? 5. What is the maximum speed limit?
Other Questions: 1. does driver have unobstructed view? 2. does vehicle steer with front or back wheels?
3. is vehicle fitted with speedometer? 4. does vehicle have a hooter? 5. size of tyres and difference
between front and back,
Case Law: Mutual and Federal Insurance v Day – forklift – Not MV
Santam Limited v Mundy – midget oval track racing vehicle – Not MV
Matame v RAF – crane – Was MV
Example:Horsedrawn cart – no claim - the cart was being pulled by an animal and not by a motor vehicle
as defined by the Act - designed to be propelled by means of fuel, gas or electricity.
3.2 Caused by or arising
The two terms are linked but are not the same. Arising is wider and refers to the case where the injury,
though not directly caused by the driving is causally linked with the driving. Caused by refers to the
direct cause of injury.
Case Law: Minister of Safety and Security v RAF – allowed diesel to escape onto surface – held to be
arising out driving.
3.3. Driving
Urging and directing of the course of the vehicle while it is in motion and will by necessity include all
other acts reasonably or necessarily associated therewith.
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