TLI4801 - Techniques in Trial and Litigation Assignment

TLI4801 - Techniques in Trial and Litigation Assignment PARTICULARS OF CLAIM Introduction These Claims arise from the death of John William smith (deceased) who was in a motor 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 deceased in 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 the leg 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 maintained a 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