UNIT 8: HANDLING OF CLAIMS 74
Learning outcomes After completing Unit 8, you should be able to do the following: Identify the claimants who are either fully or partially incapacitated as well as those claimants who are entitled to claim in a capacity other than their personal one. Have a basic knowledge of the preparatory work that needs to be done before claim documents can be submitted. Know when summons may be served on the RAF. Set out the information and essential allegations that should be included in the summons. Know whether damage awarded by a court bears interest. Know which pleas can be raised by the defendant. Understand under which circumstances a conditional counterclaim can be employed by the defendant. Realise that procedures exist in both the High Court and the magistrate s court to join a person as a plaintiff or defendant to an action. Know that the negligence aspect of a third-party claim and the quantum of damage may be separately heard. Know that actions may be consolidated where summons has been separately issued for damage to the vehicle and injuries sustained during the same accident. Know what a certificate of probable cause is. Realise that under certain circumstances an obligation rests on the owner or driver of the vehicle concerned to furnish the RAF with information regarding the accident. Know that the RAF is entitled to make payments into court in terms of the respective court rules. Know what legal costs a third-party claimant is entitled to recover. Understand that the RAF may make interim payments of damage. Readings Klopper (2008) Chapter 8 75
Introduction Read this paragraph on p. 285. 1. Parties Study pp. 285-288. 1.1 Claimants In the following section, attention is paid to those claimants who are either fully or partially incapacitated as well as those claimants who are entitled to claim in a capacity other than their personal capacity. Minors The third-party claim of a minor must be instituted by his/her guardian in the latter s capacity on behalf of the minor because minors have no locus standi to do so themselves. Take note of the applicable principle with regard to minors born out of customary union. Guardian of minor It is possible for the guardian of a minor to claim in a personal as well as a representative capacity. Married persons Persons married in or out of community of property according to civil law are competent to institute third-party claims. Black widows If a customary marriage has been formalised in terms of the Recognition of Customary Marriages Act 120 of 1998, a certificate issued in terms of this act has to be lodged. This certificate serves as prima facie proof of the existence of such union. A black widow married according to customary law and who has not applied for recognition of the union in terms of the Recognition of Customary Marriages Act 120 of 1998 is competent to institute a claim on condition that she is able to produce a certificate of a commissioner indicating the name of her spouse and which confirms that the union was in existence at the time of her spouse s death. Unrehabilitated insolvents These persons have full legal capacity to enforce a third-party claim without any co-operation or assistance of their curators. Insane persons and persons non compos mentis The claims of these persons have to be pursued by a curator appointed on their behalf. 76
1.2 Defendants The defendant in a third-party claim will always be the RAF. 2. Preparation and submission of claim 2.1 Introduction Read this paragraph on p. 288. 2.2 Preparatory work Study pp. 288-296. As explained by Klopper (p. 288), the preparatory work of a third-party claim can be divided into two parts: The consideration of the merit of the claim; and The gathering of documents and statements. For reasons set out on p. 288, it is of the utmost importance to determine whose fault caused or contributed to a specific motor vehicle accident taking place when considering whether it would be worthwhile pursuing a third-party claim. Establish whether the claim has prescribed. If prescription has not yet taken place, a prominent note should be made in your file indicating the last date on which the claim can be lodged with the RAF as well as the last day on which it can be enforced by issuing summons against the Fund. Klopper (p. 289) advises that the compulsory affidavit of the claimant should be drafted as soon as possible while the particulars of the accident are still clear in his/her mind. Should the particulars of the accident be inadequately set out, it could cause the claimant to lose his/her claim in terms of section 19 (f) (i) of the RAF Act 56 of 1996. Keeping this in mind, a number of handy pointers are suggested by Klopper (pp. 290-291) to ensure compliance with section 19 (f) (i). On pp. 291-292, Klopper stipulates the documents and statements that have to be obtained to enable you to complete and submit your client s claim form. By writing to the station commander of the police station in whose area the accident occurred, the relevant police report, plan, and witness statements can be obtained. The request for these documents must be accompanied by the prescribed fee. It is important to ask the station commander not to destroy the police docket until the third-party claim has been disposed of. You should also inquire whether criminal prosecution is intended or completed. Particulars of all witness statements should also be requested as well as the cost of obtaining such statements. 77
Where it is clear that the claimant will suffer long-term consequences as a result of his/her injuries and where such injuries are of a complex and/or serious nature, it is desirable to obtain medicolegal reports from specialists. The information that should be supplied and the information sought when requesting a medico-legal report are set out by Klopper on pp. 294-295. The cost of obtaining a medico-legal report forms part of the party and party costs of the claimant and can, therefore, be recovered from the RAF in terms of section 17(2) of the Act. (Take note that with regards to motor-vehicle accidents that took place on or after 1 August 2008, section 17(2) has been repealed by section 6 of the RAF Amendment Act 19 of 2005). Copies of all medical accounts that relate to the injuries or death of the claimant must be obtained to prove medical expenses incurred. The medical records of a claimant must also be obtained, and to do so, his/her written consent must accompany the request for it. A copy of the claimant s conditions of service from which information relating to leave and sick leave could be gathered should also be obtained. A certificate from the claimant s employer containing the information as suggested by Klopper on p. 295 is also of importance. The claimant should sign a power of attorney whereby his/her attorney is granted the authority to do all that may be necessary to institute and finalise his/her third-party claim. 2.3 Preparation and submission of claim documents Study pp. 296-303 and Krischke v RAF 2004 (4) SA 358 (W). In terms of section 24(1) of the Act, a third-party claim must be lodged with the RAF on the prescribed form (Form 1 see pp. 351-356 of your prescribed textbook), which contains a medical report. The medical report is usually completed by the medical practitioner who attended to the claimant or the claimant s breadwinner after the accident, but if he/she is not available, the Act makes provision for the report to be completed by a number of other specified persons. The permission of the claimant must accompany the request for completion of the concerned medical report if a copy of his/her medical records is requested at the same time. The completion of the medical report is not required if the claimant s breadwinner was instantaneously killed on impact. In such an event, documentary proof must be submitted that clearly indicates that the breadwinner s death resulted from the accident to which the claim relates, for example: a copy of the record of inquest proceedings relating to the breadwinner s death; and a copy of the charge sheet where there was criminal prosecution. The requirements of section 24(2)(b) of the Act are not met if a death certificate is submitted because it does not clearly indicate that the deceased was killed as a result of the accident. It has been confirmed in case law that the documents mentioned in section 24(2)(b) of the Act are not a numerus clausus of documents that can be submitted. 78
A claim would be fatally defective if it is submitted with no medical report or with an incomplete medical report. Completion of the medical report must constitute substantial compliance with section 24(2)(b) of the Act so as to enable the RAF to evaluate the claim. As already mentioned above, the claimant s claim must be set out in the prescribed claim form (Form 1). When completing this form, the provisions of sections 24(1)(a) and 24(4) of the RAF Act 56 of 1996 have to be substantially complied with. Sufficient information must be provided to enable the RAF to decide whether to resist or settle the claim or to enter into settlement negotiations. A claim would not necessarily be defective if inaccurate information is provided, on condition that there was substantial compliance with sections 17 and 24 of the Act. The test to determine whether there was substantial compliance is explained by Klopper on p. 300. It is possible to rectify a defective claim after it has been submitted, provided that it has not yet prescribed. A duty rests on the RAF to make reasonable enquiries to establish if it is liable on the information supplied by the claimant. Although an unsigned claim form is defective, it constitutes substantial compliance and will not render a claim invalid. As indicated by Klopper (p. 301), it is advisable to include a separate schedule setting out how the damage was assessed. He also stipulates the annexures that should accompany the claim form (p. 302). The claim form with annexures must be delivered by hand or sent by registered post to the RAF at its principal, branch, or regional office. With prescription in mind, it is important to obtain an acknowledgement of receipt of the claim and annexures if these are delivered by hand. In terms of section 24(5) of the Act, a claim shall be deemed to be valid in law in all respects if the RAF fails to object to the validity of the claim form and medical report within 60 days from the date on which the claim was sent by registered post or delivered by hand to the RAF. Klopper (p. 303) submits that such failure only applies to formal defects contained in section 24(5) and that it does not affect substantial omissions not related to the claim form and medical report. 3. Summons Study pp. 303-307. A competent court in whose jurisdiction area the incident took place that caused the injury or death will have jurisdiction in any action against the RAF. The information and essential allegations that have to be contained in the particulars of claim are set out on pp. 305-306. 79
With regard to an action instituted in the Supreme Court, a statement setting out the damage suffered must be made to reasonably enable the defendant to estimate the damage claimed. The applicable rule in the magistrate s court is that the claim must be stated with sufficient clarity so that the defendant is informed of the general nature of the injuries and the elements that found a claim for general damages (Klopper: p. 306). It is possible for a plaintiff to institute action for larger amounts than contained in the Form 1 claim form. The particulars of claim of the summons may be amended as long as a new cause of action is not introduced. Summons can be served on the RAF at any of the offices at which it conducts business preferably in the area where the collision took place. 4. Plea and counterclaim 4.1 Plea Study p. 307. Contributory negligence and apportionment of damages have to be specifically pleaded. Prescription has to be raised in a special plea. 4.2 Counterclaims Study pp. 307-308. A conditional counterclaim is usually employed by a defendant in the High Court to enforce an apportionment of damages against an innocent plaintiff. It is important to remember that a notice in terms of section 2(2) of the Apportionment of Damages Act 34 of 1956 should be served before the plea is filed. No clarity exists whether conditional counterclaims are authorised by the Magistrate s Court Rules. 5. Joinder 5.1 High Court Study this paragraph on p. 308. Make sure that you know that joint wrongdoers may be joined by making use of two procedures and that you understand how these procedures work. 80
5.2 Magistrate s court Study this paragraph on p. 308. Because the magistrate s court does not have jurisdiction to make a declaratory order, an order joining parties does not have the same effect as a Rule 13-notice in the High Court. 5.3 Action for loss of maintenance by partners in a customary union Study this paragraph on pp. 308-309. In an action for loss of maintenance by a partner in a customary union, all the partners indicated by the certificate issued either in terms of section 4(8) of the Recognition of Customary Marriages Act 120 of 1998 or by a commissioner have to be joined as plaintiffs. 6. Separation of issues and consolidation of actions Study this paragraph on p. 309. The Uniform Rules of Court make provision for an application for the negligence aspect of a thirdparty claim and the quantum of damage to be separately heard. Actions may also be consolidated where summons has been separately issued for damages to the vehicle as well as for the injuries sustained during the same accident. 7. Certificate of probable cause in hit-and-run claims Study this paragraph on pp. 309-310. 8. Evidence 8.1 Statement by owner or driver of vehicle concerned Study this paragraph on p. 310. Section 22(1)(a) places an obligation on the owner and/or driver of a vehicle who was involved in an accident to furnish the Fund with information regarding such occurrence if anyone other than the owner or driver of such vehicle was killed or injured. If the person(s) mentioned fails to supply the information or supplies false information, it may lead to him/her being held personally liable to the RAF for damage paid by it. 81
8.2 Interrogation of claimant in hit-and-run claim Study this paragraph on pp. 310-311. 8.3 Failure to lead evidence of driver of vehicle concerned Study this paragraph on p. 311. If the driver of the vehicle concerned is not called to testify, an unfavourable deduction against the RAF that such driver was negligent is justified. 8.4 Medical report and estoppel Study this paragraph on p. 311. 9. Payments into court Study this paragraph on p. 311. The respective rules of the High Court and the Magistrate s court entitle the RAF to make a payment into court at any stage after summons has been issued. 10. Interest Study this paragraph on p. 311. 11. Legal costs Study this paragraph on pp. 311-312. In terms of section 17(2) of the Act, a third-party claimant is entitled to recover his/her agreed or taxed party and party costs from the RAF. (Take note that this section has been repealed by section 6 of the RAF Amendment Act 19 of 2005 in respect of motor-vehicle accidents that took place on or after 1 August 2008). Any written settlement offer made by the RAF before summons was issued may be taken into account by the court when costs are awarded. 82
12. Interim payments 12.1 Voluntary payments by RAF Study this paragraph on p. 312. Section 17(6) of the RAF Act 56 of 1996 makes provision for the interim payment of damage to a third party in respect of medical costs, loss of income, and loss of support. 12.2 On application to High Court Study pp. 313-316. A plaintiff who suffered damage because of personal injuries or death can approach the court for relief in terms of Rule 34 A of the Uniform Rules of Court. Despite the decision in Karpakis v Mutual and Federal Insurance 1991 (3) SA 489 (O), Klopper (p. 314) suggests that the order may only be made with regard to past damage, but that the court may have regard to future loss when making an order for interim payment. The claimant may apply for an interim payment after the summons has been served and the period for the filing of a notice to defend has expired. With regard to the formal requirements of this application, make sure that you know what the contents of the supporting affidavit must be and what burden of proof is required to justify an order in terms of the applicable rule. A number of substantive requirements must also be present before the court may grant an order for the payment of interim damage. The court has a discretion in respect of the amount awarded, but such an amount shall not exceed a reasonable proportion of the damage the plaintiff is likely to ultimately recover, taking into account any contributory negligence, set-off, or counterclaim. The fact that an interim order has been made may not be disclosed in any manner until the quantum of the matter has been settled. Once an order for interim payment has been made, the action may only be discontinued or withdrawn with the consent of the court. The legal costs involved follow the result of the application. Multiple applications for an interim payment of damage are possible, provided that the plaintiff shows good cause. 83
13. Attorney s duty in respect of claims against RAF Study this paragraph on p. 316. The validity of a claim which is submitted on behalf of a client is not warranted by the attorney doing so. It is the duty of the RAF to investigate all claims lodged and to determine if such claims were valid. Existence of a reasonable suspicion regarding the bona fides of a claim however requires of an attorney to investigate the circumstances under which such a claim was submitted. 14. Settlement negotiations Study this paragraph on p. 316. Even if instructions to settle a matter were given by a claims handler who did not have any mandate to do so, counsel has full authority to conduct the settlement negotiations and to settle the matter. Activity 1 1. Is a third-party claimant entitled to interest on the amount of compensation awarded to him/her by a court? 2. Is a third-party claimant entitled to legal costs when he/she accepts the amount offered to him/her as compensation by the RAF? 3. In which ways may a third-party claim (Form 1) be submitted to the Fund? 4. If a person is killed instantly in a motor vehicle accident, which documents may be attached to the relevant claim form (Form 1) in verification thereof? Will the concerned death certificate be accepted as verification? 5. In terms of the RAF Act 56 of 1996, do/does the owner and/or the driver of a motor vehicle have a duty to provide information regarding an accident involving such motor vehicle to the Fund? If so, what are the possible consequences if such information is not communicated to the Fund? 84