(iv) Principles relating to vicarious liability ** See PG 230-233 5.4 Employees who are passengers in the employ of the owner or driver of the motor vehicle and entitled to compensation in terms of the COIDA of 1993 ** Please note this part was taken from the study guide Study pp. 233-238, section 18(2) of the RAF Act and RAF v Maphiri 2004 (2) SA 258 (SCA). (Make sure that you understand the example set out in footnote 116. Remember the accident in this example took place before RAFAA came into operation.) This type of passenger’s claim is restricted in terms of section 18(2) if the following requirements are complied with: ➢ The claimant must have been conveyed and injured or killed by the sole negligence of the driver of the vehicle concerned. ➢ The claimant must be in the employ of the owner or the driver of the motor vehicle concerned. ➢ The claimant must be entitled to compensation in terms of the COIDA. In terms of COIDA, employees or their dependants who are defined as such in said act are entitled to compensation if they are injured or killed in the course of their employment. They must claim from the Compensation Commissioner in
terms of COIDA. In other words, if an employee is injured or killed in the course of his/her employment in a motor vehicle accident, a possible interaction between the RAF Act and COIDA arises. The purpose of this interaction is basically to prevent an employee from being compensated for the same damage in terms of both of these acts. In terms of section 18(2) of the RAF Act, this type of passenger’s claim is restricted to the difference between: ➢ the third-party claim such claimant would have had were it not for the provisions of section 18(2) (in other words, his/her total common law delictual claim); and ➢ the compensation he/she is entitled to in terms of the COIDA. If the motor vehicle accident took place before the Act was amended by the RAFAA of 2005, the claim would have been restricted to the difference between: ➢ the third party claim such claimant would have had were it not for the provisions of section 18(2) or R25 000, whichever is the lesser amount; and ➢ the compensation he/she is entitled to in terms of COIDA. For example: If the claimant passenger sustained injuries in a motor vehicle accident that took place on 12 May 2013 in the course of his/her employment amounting to R100 000-00 and he/she had already received R18 000-00 from the Compensation Commissioner in terms of the COIDA, what amount would he/she be entitled to claim from the Fund in terms of the RAF Act? As explained above, you take such claimant’s total common law claim (which is R100 000 in our example) and from this amount you deduct the R18 000 that was received from the Compensation Commissioner. In other words, R100 000 – R18 000 = R82 000. The passenger claimant is, therefore, entitled to claim an amount of R82 000 from the Fund in terms of the applicable principles. By making use of the above-mentioned principles, see if you are able to determine the amount that a passenger would be entitled to claim from the RAF if the particular accident occurred before 1 August 2008.
You've reached the end of your free preview.
Want to read all 67 pages?
- Fall '19