TECHNIQUES IN TRIAL ANDLITIGATION – TLI4801 Assignment 01: 726196
1 | P a g ePARTICULARS OF CLAIM
Introduction
These Claims arise from the death of
... [Show More] John William smith (deceased) who was in amotor
vehicle accident and subsequently died at the scene of the accident. The Deceased was
married with children.
The Parties
1.
1.1 The first plaintiff is Mrs. Anne Smith, to be referred to as Anne from here on, born
October 6, 1969. She resides at 18 Dynamite Place in Cape Town in the Western
Cape.
1.2 The Second Plaintiff Is Anne Elise Smith, the daughter of Anne Smith born 03
July 2006 (represented by the first plaintiff as the guardian)
1.3 The Third Plaintiff is James Andrew Smith, the son of Anne Smith, born 19
August 2004 ( Also Represented by the first plaintiff)
1.4 The defendant is Mr. Joe Soap, a Carpenter of Gravity Street in Cape Town.
1.5 The Second Defendant is The Road Accident Fund – Standard Bank,
hanstrijdom avenue, Cape Town city Centre, 8001
2 The Deceased is John William Smith, born 5 May 1965, was married to the first
plaintiff Anne Smith in community of property at NG Lucas Kerk in Cape Town onthe 3rd of August 1991. The Second Plaintiff and the Third plaintiff were born from
the Marriage of the Deceased and the First Plaintiff.
The Collision
3 On the 6 of August 2018, the first plaintiff was driving her Honda, registration NPN
2001, along Clover Street in Cape Town, Waterfront. Was driving with the deceasedin
the passenger seat and the second and third plaintiff were in the back seat. The all
had seat belts on.
3.1 When the first Plaintiff Approached the Intersection at Clover Street, the light turned
green in her favor, and she travelled through the intersection at 50 kilometers per
hour.
3.2 As she was travelling through the intersection, the defendant cam at high speed
from her right side and struck her car.
3.3 The car spun around and collided with its left hand side against the light pole on the
SW corner of the intersection.
3.4 The first respondent was badly injured in the collision, the second and third plaintiff
were in a coma summarily after the accident.
3.5 The First Plaintiff’s husband died at the scene of the accident.
The Defendant’s Negligence (insured driver)4 Mr. Joe Soap (Defendant) was negligent in his driving, and in his negligence he was
the sole cause of the collision.
4.1 The defendant failed to keep a proper look out while driving through the intersection.
4.2 The Defendant failed to keep the vehicle he was driving under proper control of road
rules
4.3 The defendant was driving at high speed, he exceeded the Speed limit set for road
(he was driving above 60 kilometers per hour)
4.4 He failed to reduce his speed after becoming aware of the first Plaintiff’s Vehicle on
the road
4.5 He failed to avoid the collision, by the exercise of due and reasonable care and skill
and he should’ve done so
4.6 By avoiding to comply with the rules of the road the defendant intentionally exposed
himself to danger and by so doing caused the death of Mr. John William Smith
(deceased).
4.7 The duty of care was breached by the defendant.
The Duty of Support owed to the Plaintiffs
5. During a Marriage, each spouse owes to the other a reciprocal duty of support,
provided that the person claiming such support is actually in need of it and that
the other spouse can actually provide it.5.1. This support includes accommodation, clothing, food, medical services and
other necessities.
5.2. The duty to support each other is the responsibility of both spouses and
means that if, for example, a woman does not have the financial means to
support herself, her husband has a legal obligation to support her, and vice
versa.
5.3. The Deceased was a qualified systems engineer at Kilmer packaging In Cape
Town, He earned R35 000 a month which allowed him to support his whole
family (the plaintiffs).
5.4. The Deceased received an annual bonus which is equal to his salary.
5.5. The deceased would’ve worked till his retirement age of 65.
5.6. His duty was to support his wife (the first Plaintiff) and Children (the second
and third plaintiff)
5.7. The first plaintiff did not work as she looked after the children, she does not
have skills to earn the amount of money the deceased was earning in his job.
5.8. The deceased used to give the first plaintiff half of his salary each month for
household expenses, this amount was R17 500.
5.9. The Plaintiff used R4 500 to pay the bond in the house and the rest of the
money went to the following expenses:
• Food and Groceries
• School fees and allied expenses for the Second and third respondent
• Clothing and School uniform• Domestic and gardener’s Salaries
• Petrol and services for the deceased and first Plaintiffs car.
• Unforeseen expenses that arise
5.10. The Typical way of compensating a dependent is to receive the same support
he or she would’ve received had the accident not occurred. However the death
of certain family members in the accident could have increased the support of
the remaining dependents.
5.11. It is clear with the facts above that the deceased intended to carry out the
duty if support to his family in the prospective future and therefore the
Plaintiffs are entitled to Loss of support and general damages that have been
incurred in the accident.
The Quantum of Claim for the Plaintiffs
6. In terms of Rule 18 of the uniform rules of the court, the plaintiff shall set out the
damages suffered to enable the defendant to assess the quantum of the claims
thereof.
The first Plaintiff’s loss
6.1. The first plaintiff suffered the following injuries in the collision –
6.1.1. A broken leg (left tibia and fibula)
6.1.2. A head injury involving the loss of consciousness and a significant concussion
6.1.3. A cut below the left eye, resulting in permanent facial scarring (this is a 3cm
long scar running down the left side of the cheekbone)
6.1.4. Bruises and abrasions on the right side of the body6.1.5. According to the doctor the first plaintiff will have permanent shortening of
theleg by about 2cm, which will cause her to walk with a limp and will require
shoe raises for the left shoe
6.1.6. The costs of the shoe raises will be R200 per pair of shoes for the rest of her
life
6.1.7. The plaintiff usually buys shoes twice a year.
6.2. Due to the death of the breadwinner the plaintiff has suffered the loss of
income that he used to receive from the deceased on a monthly basis
6.3. The deceased was a qualified systems engineer who earned a salary of R35
000 per month including and annual salary that was equal to his salary
6.4. The defendant received half the deceased salary for household expenses,
children’s school fees clothing, school uniform and school fees. R4 500 of the
money given to the plaintiff was used to pay the bond on the house.
6.5. The first plaintiff is claiming for Loss of support, loss of income and general
damages for pain suffering, disability and loss of amenities to life.
6.6. As well as claims on behalf of the second and third plaintiff for loss of support
and general damages.
6.7. The first defendants claim will be spread out as follows:
6.8.
In determining the period within which a bread winner would have
maintaineda dependent, three basic facts must be established:
1) What the combined life expectancy of the deceased would have been if it
were not for the premature death. A medical examination of the deceased
can be supplied as proof of his health.2) How many of these years the breadwinner would have had an income.
From the facts stated, it sis gathered that the deceased had a stable job
and would have had an income until his retirement at age 65.
3) For the period of that time the bread winner would have given a portion of
such income to the dependent. The deceased passed away at the age of53
and still had 12 years till retirement and this would have been the
duration taken into account when calculating the portion given to the
dependent.
a) Medical expenses: R 25 000
b) Bond on the house: 4 500 *12 = R54 000
c) Household expenses including allied expenses = R156 000
d) Hospital bill = R18 000
e) Pain and suffering caused by the accident = R225 000
f) The total claim for the first plaintiff amounts to R478 000
The second plaintiff’s loss
6.9. The second defendant is a minor who is represented by the first plaintiff as
their guardian and biological mother. Due to the accident the second plaintiff
suffered the following injuries-
6.9.1. She suffered a broken pelvis and still in hospital for traction
6.9.2. She will be in hospital for an extended three weeks
6.9.3. The second plaintiff will never be able to play sport again
6.9.4. She was doing ballet and had been in the CPT cross country squad
6.9.5. The doctor advised she will need physio therapy (three sessions per week)
for the period of nine months after discharge from hospital and the cost will
amount to R420.00 per session.6.10. The Following are the claims from the second defendant and these have been
brought by their guardian being the first defendant. These costs were
calculated taking into account the injuries suffered in the accident as stated in
paragraph 6.9
a) Medical expenses: R78 000
b) Hospital costs: R32 000
c) Physio Therapy costs: R45 360
d) Pain and suffering: disfigurement due to the accident = R168 000
e) The Claim for the second plaintiff amounts to R323 360
The Third Plaintiff’s loss
6.11. The third Plaintiff is also a minor and shall be represented by the first
plaintiffas their guardian and biological mother. Due to the accident, the third
plaintiffsuffered the following injuries –
6.11.1. He suffered a head injury, he is also still in hospital
6.11.2. He may have short paralysis on the left side of his body
6.11.3. The doctor describes his injury as a diffuse head injury involving prolonged
loss of consciousness and permanent loss of some intellectual andmotor
function
6.11.4. He may need remedial teaching for special employment for handicapped
people
6.11.5. The plaintiff will not be able to play sport again due to his injuries
6.11.6. An occupational therapist, Mrs. Duyn Barnard has examined the plaintiff and
advised that he will need occupational therapy for two years at a cost ofR1
750.00 per month.
6.11.7. The doctor advised that the plaintiff will be disabled and he will not be ableto
compete in the labor market6.11.8. His disability is estimated at 33%
6.12. The following are the claims from the third plaintiff arising from the
injuriessustained in the accident:
a) Medical costs: R128 125
b) Hospital costs: R47 621
c) Occupational therapy: R84 000
d) Damages arising from disability (Permanent) : R194 000
e) Pain and Suffering: 32 000
f) The total claim for the third plaintiff is R485 746
7. The process of assessing damages is concerned with subtracting the current
patrimonial position of a dependent from the hypothetical patrimonial position
heor she would have occupied if the breadwinner had not been killed in the
accident
8. In Hulley v cox the court referred to two methods in terms of which the damages
of a dependent may be computed.
8.1. The first is based on the principle of an annuity while the second amounts to a
fair and general estimate of such loss.
The First Plaintiff’s bodily injuries
9. Due to the defendant’s negligent driving drafted in paragraph 4, the plaintiffs
suffered damages due to the accident.
10. A person who has sustained bodily injuries is entitled to compensation for all
medical and similar expenses reasonably incurred by him or her in the treatment
of bodily injuries and their consequences.11. As a result of the defendant’s negligence whilst driving, the first plaintiff suffered the following losses:
11.1. Future Medical expenses (prospective treatment) – not permanent 11.2. Loss of earning capacity (prospective income, future earning after date of incident) the plaintiff has endured a permanent injury on the leg
11.3. Legal Costs of the plaintiff
The second Plaintiff’s bodily injuries 12. In terms of rule 18(10) of the Uniform Rules of Court and rules 6(9) and 6(10) of the Magistrates’ Court Rules a plaintiff suing for damages for personal injury (which includes compensation for non-pecuniary loss) has to specify inter alia the nature and extent of the injuries as well as the nature, effects and duration of the resultant disability. In addition, he or she has to state separately the amount claimed for the different forms of non-patrimonial loss.
12.1.1. Future Medical expenses - She suffered a broken pelvis and still in hospital for traction – although this is temporary treatment may be require inthe future
12.2. Hospital expense – The second plaintiff will be in hospital for the duration of three weeks (temporarily) and this is bound [Show Less]