TECHNIQUES IN TRIAL AND
LITIGATION – TLI4801
Student Number
, 1
QUESTION 1
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.
TECHNIQUES IN TRIAL AND LITIGATION – TLI4801 | Portfolio Exam - 855792
, 2
- In De Klerk v ABSA Bank Ltd the Supreme Court of Appeal held that
factual causation requires the establishment, on a balance of probability,
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.
TECHNIQUES IN TRIAL AND LITIGATION – TLI4801 | Portfolio Exam - 855792
LITIGATION – TLI4801
Student Number
, 1
QUESTION 1
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.
TECHNIQUES IN TRIAL AND LITIGATION – TLI4801 | Portfolio Exam - 855792
, 2
- In De Klerk v ABSA Bank Ltd the Supreme Court of Appeal held that
factual causation requires the establishment, on a balance of probability,
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.
TECHNIQUES IN TRIAL AND LITIGATION – TLI4801 | Portfolio Exam - 855792
