TLI4801 - Techniques in Trial and Litigation Portfolio Exam 855792

TLI4801 - Techniques in Trial and Litigation Portfolio Exam 855792DECLARATION OF AUTHENTICITY I, (Full name/s and surname) Student number: 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 2 | P a g e2 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 prove his/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, 3 | P a g e3 of a causal link between the negligence and the loss, while quantification, where it depended on future uncertain events, is decided not on a balance of 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 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. 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 and also 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. 4 | P a g e4 - 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 GAUTENG HELD AT PRETORIA In the matter between: Mrs. Smith Mr. Smith Jackie - 1st Child (guardian Mr. & Mrs. Smith) Jason - 2nd Child (Guardian Mr. & Mrs. Smith) Plaintiff AND 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. 5 | P a g e 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. J Soap, 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 6 | P a g e6 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: