TECHNIQUES IN TRIAL AND LITIGATION – TLI4801 Portfolio Exam: 855792
Student Number1
DECLARATION OF AUTHENTICITY
I, (Full name/s and surname)
Student
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Declare that I am the author of this examination in TLI4801 I further declare that the
entire examination is my own, original work and that where I used other information and
resources, I did so in a responsible manner. I did not plagiarize in any way and I have
referenced and acknowledged any legal resources that I have consulted and used to
complete this examination. By signing this declaration I acknowledge that I am aware of
what plagiarism is, and the consequences thereof. Furthermore, I acknowledge that I
am aware of UNISA’s policy on plagiarism and understand that if there is evidence of
plagiarism within this document, UNISA may take the necessary action.
Date: 05/10/2018
(Provide an electronic signature or type or write your name or surname again)
QUESTION 1
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1.
(a) The Case pertains to the accident that occurred on the 2nd April 2018
between Mrs. A Smith and Mr. J Soap. The accident occurred due to the
negligence of Mr. J Soap as he was travelling at high speed under the
circumstances alleges Mrs. Smith who was travelling with her husband and
two children and they all sustained personal injuries from the accident.
The personal injuries on Mrs. Smith and her family, led to a claim of damages
for personal injuries sustained in the accident. Damages refer to compensation
for all the injuries sustained in the accident, where the plaintiff may claim such
an amount from the Road accident fund.
(b) In civil matters the burden of proof or onus, rests with the Plaintiff/s to
provehis/her case on a balance of probabilities, usually the person who
alleges, must prove their case.
- Taking the facts of the case we are dealing with, Mrs. Smith and her
family will need to prove on a balance of probabilities that the damages
she sustained were due to the accident and must also prove that the
defendant was Negligent in order to succeed with her claim for damages.
- For example, Mrs. May not claim for injuries she sustained before the
accident.
- The Standard of proof on a balance of probabilities usually applies in
regard to proof of damage and the damages.
- The standard of proof means there needs to be material evidence that
outlines the causal link between the negligence and loss of the plaintiff in
a case of damages for instance.
- In De Klerk v ABSA Bank Ltd the Supreme Court of Appeal held that
factual causation requires the establishment, on a balance of probability,
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of a causal link between the negligence and the loss, while quantification,
where it depended on future uncertain events, is decided not on a balanceof
probability, but on the court’s assessment of the chances of the risk
eventuating.
(c) THE CAUSE OF ACTION IN MRS. SMITH’S CASE ARE AS FOLLOWS:
- On the 2nd of April 2018 Mrs. Smith was driving with her family and
whenat an intersection at Main Street and Long Street, a Honda with
registration TN565GP driven by Mrs. Smith collided with a car driven at
high speed by Mr. J Soap.
- The collision between the two vehicles resulted in Mrs. Smith and her
family sustaining personal injuries and her car also being damages due to
the accident.
- He failed to obey the rules of the road by driving at an excessive speed.
- The accident was caused by the negligence of Mr. J Soap, who was
speeding and failed to keep a look out and failed to avoid the collision due
to his speeding.
- Therefore, Mrs. Smith’s cause of action will be for the claim of damages for
personal injuries, general damages sustained due to the accident andalso
for special damages for expenses that may have occurred due to the
accident.
- There is also a claim for damaged property, which is Mrs. Smith’s car,
(d) The Nature of the Claim determines the type of summons to be used to
commence proceedings.
- A claim for damages is always unliquidated, because the actual quantum
will only become “fixed” and “definite” once a court determines the
amount. This means after having heard the evidence in support of the
claim.
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- The summons to be used in this particular case is The Combined
summons, as this claim is for damages and the nature of the claim is
unliquidated
(e)
IN THE REGIONAL COURT FOR THE REGIONAL COURT OF GAUTENGHELD
AT PRETORIA
In the matter between:
Mrs. Smith
Mr. Smith
Jackie - 1st Child (guardian Mr. & Mrs. Smith)
Jason - 2nd Child (Guardian Mr. & Mrs. Smith)
PlaintiffAND
Road Accident Fund (RAF)
PARTICULARS OF CLAIMS
1. The first plaintiff, is an adult female, Annelise Smith who was born 05 May
1969, currently residing at 17 Dynamite Place, Nellmapius in Pretoria.
2. The second Plaintiff, is an adult male, Brandon Smith who was born 19 October
1967, currently residing at 17 Dynamite Place, Nellmapius, Pretoria. Second
Plaintiff is married to the first plaintiff.
3. The third plaintiff is a female person who is a minor, who was born on 05 April
2004, is represented by the first Plaintiff as the guardian.
4. The fourth plaintiff is a male person who is a minor who was born 3 August
2010 and is also to be represented the first plaintiff as the guardian.
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First Plaintiff
Second Plaintiff
Third Plaintiff
Fourth
Defendant5
5. The defendant is the Road Accident Fund, (the “RAF”) a body entitled to sue
and be sued in its own name by virtue of the provisions of the Road Accident
Fund Act 56 of 1996 (the Act) with its principal place of business situated at 2,
Eco Glades, Centurion, Pretoria and 38-44 Ida St, Lynnwood Glen, Pretoria.
6. The Road Accident Fund is liable to handle claims arising from motor vehicle
collisions.
7. On the 2nd of April 2018 Mrs. Smith was driving with her family and when at an
intersection at Main Street and Long Street, a Honda with registration TN565GP
driven by Mrs. Smith collided with a car driven at high speed by Mr. JSoap, who
was driving a Jeep with a registration GT0578GP. The collision between the two
vehicles resulted in Mrs. Smith and her family sustaining personal injuries.
8. The collision stated in the paragraph 7 was caused solely as a result of
negligent driving of the insured driver, in one or more of the following:
-
8.1. The insured driver failed to keep a proper look out
8.2. He failed to avoid the collision when he could have done so.
8.3. He was travelling at an excessive speed in circumstances.
8.4. He failed to obey the rules of the road.
8.5. By failing to exercise proper control over the insured vehicle.
9. As a result of the collision, the first plaintiff suffered multiple bodily injuries:
9.1. Bruises and abrasions on the right side of the body
9.2. Hip Fracture
9.3. Cuts on the leg and nerve damage
9.4.
Tibia and fibula fractures in the left leg.
9.5. The aforesaid injuries sustained by the first plaintiff in the collision are as
follows:
9.5.1. The bruises and abrasions on the right side of the body amounts to
R33 000
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9.5.2. Hip fracture amounts to 166 387.00, this includes regular checks up
9.5.3. The cuts on the leg and nerve damage amounts to 85 698.00
9.5.4. Tibia and fibula fracture of the left leg amounts to 125 000.00
9.5.5. The first plaintiff sustained injuries amounting to R410 087.00
10. As a result of the collision, the second plaintiff suffered multiple bodily injuries:
10.1. Skull fracture
10.2. Broken pelvis
10.3. The aforesaid injuries sustained by the second plaintiff in the collision
amount to 1 740 000 (pelvis 600 000 and physio therapy 590 *3*4*10 &
Skull fracture 1 069 200)
11. As a result of the collision the third plaintiff suffered multiple bodily injuries:
11.1. Partial paralysis on the right hand side of her body
11.2. Head injuries
11.3. Bruises and abrasions on the body
11.4. As a result of the injuries sustained in the accident, the third plaintiff
suffered damages amounting to 2 145 400 (hemiplegia 1 200 000, brain
injury 600 000 and therapy 402*12)
12. As a result of the collision, the fourth plaintiff suffered multiple bodily injuries:
12.1. Broken and fractured wrist
12.2. Busted ribs
12.3. Bruised and abrasions on the body
12.4. The foresaid injuries amounts suffered by the fourth plaintiff in the
collisionamounts to damages of R983 000 (bone restructuring R600 000 &
Operation cost 200 000)
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13. As a result of the injuries sustained in the accident, the plaintiffs:
13.1. Experiences Pain and suffering
13.2. Suffered loss of amenities to life
13.3. Suffered loss of earning capacity
13.4. They were disfigured
14. The nature and duration of pain and suffering, loss of amenities of life,
disfigurement and disability are set out in the medical legal reports.
15. A claim for compensation as prescribed by section 24 of the Act has been
submitted to the defendant on 11 September 2018 and the requirements of the
Act and regulations have been complied with insofar as may be necessary.
16. The Plaintiffs have suffered serious injuries in the Act and are consequently
entitled to damages for non-pecuniary loss, as provided in the Act and has
complied with peremptory procedures prescribed by the Act and the regulations
provided thereto.
17. Notwithstanding the expiration of 120 days from the date which the
plaintifflodged the claim, the defendant has not compensated the plaintiffs
for the aforesaid damages or any part thereof.
18. In the premises the defendant is liable to compensate the plaintiffs the sum of
R5 278 487.00, which amount or any portion thereof the defendant has failed to
pay.
WHEREFORE the plaintiffs prays for judgement as follows:-
1. Payment in the sum of R 5 278 487,00
2. Interest on the aforesaid amount according to law
3. Costs of suits
4. Further and /or alternative relief
DATED AT PRETORIA ON THIS THE 1st October 2018
Counsel for the Plaintiff
Mrs. Ramsey Wegerif
Counsel for the defendant
Mr. Thomas Matlala
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(f) The Pleading that may be used by the defendant’s attorney is a Claim in
reconvention also known as a Counterclaim.
COUNTERCLAIM/ CLAIM IN RECONVENTION
- A counterclaim or claim in reconvention is the defendant’s separate cause
of action against the plaintiff.
-
If the defendant wishes to bring a counterclaim he is obliged to do so
when filing his plea.
- The counterclaim does not have to be linked to the plaintiffs claim.
- The plaintiff does not need to deliver a notice of intention to defend the
counterclaim, but the plaintiff must then deliver a plea to the counterclaim,
in which the plaintiff must set out its defense to the counterclaim.
- The plea to the counterclaim must be delivered at the same time as the
replication, if one is to be delivered.
- Although the defendant may institute a separate action by initiating a
counterclaim, the separate claims may be consolidated later in terms of
rule 11, if it appears to be convenient to consolidate the two actions.
9 | P a g eIN THE REGIONAL COURT FOR THE REGIONAL COURT OF GAUTENGHELD
AT PRETORIA
Case number 185/07/118 - 2018
In the matter between:
Mrs. Smith
AND
Mr. J Soap
Defendant’s Claim in Reconvention/
Counterclaim
1.
The defendant Mr. J Soap is a male person, born august 19, 1962. Currently residing at
8528 Silvebrooks Estate, Waterkloof in Pretoria.
2.
The plaintiff, is an adult female, Annelise Smith who was born 05 May 1969, currently
residing at 17 Dynamite Place, Nellmapius in Pretoria.
3.
At all relevant times hereto, the defendant was the owner of a Jeep with registration
GT0578GP
4.
On the 2nd of April 2018 a collision occurred at an intersection at Main Street and Long
Street, between a Honda with registration TN565GP driven by Mrs. Smith and a vehicle
driven by Mr. J Soap, who was driving a Jeep with a registration GT0578GP. Which was
Plaintiff
Defendant10
at all material times driven by the defendant. The collision resulted in the defendant’s [Show Less]