A vehicle accident victim who attempted to institute a fresh claim against the Road Accident Fund (RAF) after already having received a settlement failed when she took the matter to the Western Cape High Court recently.
Phozisa Tosholo, wanting to hold the RAF liable for general damages she suffered as a result of the accident she was involved in 2012, submitted to the court that she had been “grossly under-settled” but omitted to inform her attorneys that a RAF claim had previously been settled and the matter had been prescribed.
According to the court records, Tosholo had, on May 6, 2013, while attending Tygerberg Hospital as an out-patient, signed a consultation letter prepared by a representative of RAF where a claim form was completed, including medical and personal information as well as details relating to the accident and compensation claimed.
Tosholo had made a compensation claim of R38 012.70 for loss of income while she was booked off work due to injuries sustained, but consultation to settle the claim resulted in Tosholo accepting a settlement amount of R17 121.40.
Tosholo, in 2014, attempted to make a third-party claim for the same accident but was informed “that a new claim/second claim could not be registered”.
The judgment read: “(Tosholo) confirms that she submitted proof of her loss of earnings to the RAF official and that she signed acceptance of an offer on 18 November 2013.
She testified that she did not read the contents of the acceptance she signed and did not realise that it finally settled her claim.
“The plaintiff testified that the RAF official informed her that RAF would not pay for further medical examinations and, if she wanted to pursue a greater claim that she would have to pay for the medical reports herself. She was not in a position to, so she signed the offer.
“The identity of the RAF official was not known to the plaintiff.”
Tosholo’s attorney lodged a second claim with RAF on 4 June 2014. This included a claim for loss of damages in the amount of R24 000 after she had initially, in her consultation with RAF, filled in the claim form, which reflected loss of earnings only.
No value was entered in respect of any other damages.
Tosholo’s attorney, after receiving communication from the RAF that her client’s claim was a duplication and that the matter had been settled, “testified that this correspondence from RAF was in her file but that she ‘missed it’”.
The matter progressed slowly, and several medical reports were obtained from both parties setting out the plaintiff’s injuries, loss and substantiation for the general damages portion of the claim totalling R1 507,507.00
Acting Judge, Raadiyah Wathen Falken, said: “It is common cause that the plaintiff was only paid out her past loss of income and that no consideration was had for general damages.
In the course of their correspondence between the parties and the nature of the injuries, one could expect that in the ordinary course, that the defendants may have considered a claim based on the ‘under-settlement’.
“However, it could not, in the current circumstances because of two reasons: the plaintiff was not frank and open with her attorney; (and) the plaintiff’s attorney was not mindful of the plaintiff’s file contents, resulting in an inordinate lapse of time for which the RAF cannot be wholly responsible,” said Wathen-Falken.