An accident is an actionable civil wrong. The substantive Law which gives a right for one to go to court in this instance is Law of Delict or Law of Tort. The cause of action arises under the defendants duty of care towards the users of the road.
1. Be mindful of the Tort of Negligence and the duty of care when you draft.
2. Jurisdiction is determined on the place of the accident. See section 9 of the CPC
IDENTIFICATION OF THE PLAINTIFF
3. If the victim is a minor a next friend has to be appointed prior to the filing of the action. See Section 373 onwards of the CPC.
4. If the victim has died an immediate relative could file on the basis of dependency.
5. If the victim is an adult he himself can file the action.
IDENTIFICATION OF THE DEFENDANT
6. Sometimes the vehicle may have been driven by the owner himself. He would be the sole Defendant.
7. If the vehicle was driven by an employee or an agent both have to be named as defendants.
8. If the vehicle is owned by a jurisdiction person such as a company a Corporation a Board such juristic person would be the 1st Defendant and the driver the 2nd Defendant based on Master servant liability.
9. If the vehicle belonged to The State or a State Institution AG should be made a Defendant.
10. In such an instance You must give prior notice of 1 month under section 461 of the CPC to the State and the Officer who drove.
11. In naming the officer he cannot be named by his designation or office unless he is a corporate sole. Remember the nomini Officii Objections and concept.
12. The action has to be filed within 2 years of the accident in view of the prescriptive period identified by law.
PLEADINGS
The Plaint must contain the following;
1. Residence of the parties and accruing of the cause of action.
2. Where there are 2 defendants a description of the defendants and their relationship based on Master servant liability.
3. Details of the vehicle/number/ownership/driver.
4. The fact that the accident took place Where and when ?
5. Damages suffered by the Plaintiff.
6. Various acts of Negligence committed by the driver which led to the accident and the damages arising out of that.
7. Injuries and loss suffered by the Plaintiff has to be stated. Here remember that these types of cases involve 2 types of damages.
A. General damages - damages arising out of the accident which has an impact on the persons future and loss of future prospects.
B. Actual damages suffered by way of medical expenses and loss of income during the period of suffering.
8. Both these types cannot be pleaded as one. They must be separately pleaded and proved. The total cause of action or claim can be the total of both but pleading has to be seperate.
9. Financial status and loss of prospects must be pleaded.
10. Effect of injuries to his livelihood must be pleaded.
11. Under Motor Traffic Act Section 106, notice has to be sent to the insurer within 7 days or before filing of the case and with new amendments insurer has to be made a party.
12. A letter of demand has to be sent and this fact must be pleaded.
13. Be mindful of the following statutes;
1. Contributory Negligence and the Joint Wrongdoers Act No 12 of 1968.
2. State Liability in Delict Act No 22 of 1969.
BASIC RULES IN PLEADINGS.
1. Be simple in the language.
2. Do not plead evidence such as medical reports Police reports etc.
IMPORTANT CASE DECISIONS
1. Phillips v London South Western Railway Company 1879 - 90 QBD CA 78 - Factors that the court should consider before awarding damages.
2. Domsalla v Barr 1969 2 AER 487 - Special damages should be pleaded separately and will be awarded only if proven.
3. Ilkiw v Samuel and Sons 1963 2 AER 879 - Special damages if not pleaded will not be awarded as part of the claim for general damages.
4. Sandler v Wholesale Coal Suppliers 1941 AD 194
Union Government v National Bank of South Africa 1921 AD 121
Kotz v Johnson 1920 AD 438
Burden on the plaintiff in an accident case.
5. W H Bus Company v Samaranayake 55 NLR 182 - Plaintiffs Liability to prove loss of income.
6. Peter v Parapathi 69 NLR 525 Computation of Damages.
7. Nadaraja v Ceylon Transport Board 79 NLR 48 - Assessment of Damages.
8. Ghaffoor v Wilson 1990 1 SLLR 142 - loss of support caused by death of Child.
9. Punchi Singho v Bogala Graphite 73 NLR 66 Res Ipsa Loquitor.
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