In order to successfully prove you case, you must prove that you have suffered harm (physical or psychological harm or financial loss) as a result of the negligent conduct or omission of another person.
Negligence is conduct that falls short of what a reasonable person in the circumstances with the same level of expertise would do to protect against foreseeable risk or harm to another.
Whether a person failed to foresee the possibility of harm occurring to another in circumstances where the reasonable person in his/her position would have foreseen the possibility of harm occurring and would have taken steps to avoid or prevent it.
The "compensation" claimed is divided into what are called: heads of damages. The various heads of damages will be addressed in detail, they are:
In the event of death of a breadwinner, the funeral expenses as well as loss of support for dependants can be claimed.
There will be an amount claimed under each of the heads of damages. The amounts are not cast in stone and can be changed or amended at any time before judgment or settlement.
The damages claimed is the amount of money it would take to place the claimant in the position that s/he would have been in had the accident/incident/incident not occurred and caused the plaintiff to suffer damages.
Past Hospital and Medical Expenses:
These are all the hospital and medical expenses incurred from the date of the accident/incident/incident until the date that the claimant is compensated. It is therefore very important that a claimant keeps all the accounts from the hospital, doctors, physiotherapists, psychologists, pharmacies etc and submits these to their attorney to add to the claim.
It is important to remember that a medical aid does have the right to be reimbursed for the amounts that they have paid in respect of the treatment administered to the plaintiff as a result of the accident/incident. It is a contractual obligation between the plaintiff and his/her medical aid that the medical aid is reimbursed upon successful finalisation of claim. The medical aid will usually send the plaintiff an undertaking that they must sign wherein the plaintiff undertakes to reimburse the medical aid upon successful finalisation of the claim. The medical aid has the right to reverse payment that they have made if the undertaking is not signed.
Past Loss of Earnings
The loss or decrease in earnings that have resulted from the accident/incident/incident is claimed under this head of damage. This includes all loss of earnings from the date of the accident/incident to the date that the claimant is compensated. The plaintiff is usually requested to furnish his/her salary slips and tax documentation for a period (usually 3 years) prior to the date of the accident/incident/ incident until the present date. The difference in earnings is then what is claimed.
Future Hospital, Medical and Supplementary Expenses
For this claim, the expertise of additional medico-legal experts is needed. The plaintiff will be sent to different experts depending on the type of damage/ injury that s/he has suffered as a result of the accident/incident/incident. For example, if the injury suffered involves the brain, a neurosurgeon or neurologist will be consulted along with other experts such as a psychiatrist, educational psychologist, clinical psychologist, occupational therapist etc. If an orthopaedic injury was suffered or a heart defect, then the corresponding expert will be consulted. The experts do not treat the plaintiff in any way; they assess the damages suffered and write a report thereon.
One must keep in mind that the defendant will also have the right to send the plaintiff to their own experts. There is therefore a chance that the plaintiff will be sent to two experts in every field.
In the reports by the respective experts, the treatment suggested in the future will be given, along with the prices of the treatment at present and the amount of time off work for this future treatment. This is what makes up the claim for future hospital and medical expenses.
At A Batchelor & Associates we have a panel of top medico-legal experts with vast experience in drafting reports and giving expert evidence in court.
Future Loss of Earnings and Interference with Earning Capacity
This too is based on the information obtained in the abovementioned medico-legal reports. An industrial psychologists report also becomes important here. S/he will have to take into account where the plaintiff stands in his/her career at present and what his/her likely progression would have been had the accident/incident not occurred. The difference here is what makes up this claim. These figures are also sent to an actuary for the same reasons as stated before.
The employer that the plaintiff was working for at the time of the accident/incident may be consulted by the experts and attorneys in order to obtain relevant information about the plaintiff such as: the plaintiffs abilities, promotional prospects, retirement age, skills needed for the job etc.
This head of damage also takes into account how much time off work the plaintiff will need to attend medical treatment.
This head of damage incorporates the compensation for pain and suffering, loss of amenities of life, disfigurement, loss of life expectancy and emotional shock. General damages are what we call a non pecuniary/non patrimonial (not financial) damages. But what amount of money can compensate the above? There is no expert who can put a value to these losses. The amounts awarded for general damages lies within the discretion of our very conservative courts. The amount claimed is based on what has been awarded by the courts in previous cases for similar injury/ insults, taking the age of the aggrieved person into account. There are actuarial calculations done annually which bring the past awards made by the courts for general damages, up to date.
Certain aspects that influence the amount claimed for general damages are: the type of pain the plaintiff went/ is going through/ will go through; whether further surgery can be expected, whether the plaintiff has debilitating scarring, is unable to fend for him/herself and has a decreased life expectancy etc.
Loss of Support
If the breadwinner dies as a result of an accident/incident, loss of support is claimed on behalf of his/her dependants. Loss of support is worked out by using an actuarial ratio of two parts to each parent and one part to each child. The deceaseds income at date of death will therefore be divided as above, and these figures given to an actuary to calculate what the loss of support is for each dependant, taking inflationary increases etc. into account. The dependants will be compensated up to the age when they can be expected to start working for themselves or when the breadwinner was suppose to retire, which ever comes first.
The person who has allegedly suffered damages as a result of someone elses negligence has three years from the date on which the debt becomes due to the date on which a claim is instituted. If the three year period has expired and a claim is then instituted, prescription will be pleaded by the defendant and the case will end there.
Prescription is therefore vital to address when considering a claim for damages. Prescription however does not run against a minor/ mentally ill or incapacitated person.
If one takes into consideration the time required to collect the medical records, obtain a medical opinion, draft and issue the summons, wait for the defendants Plea, apply for a trial date and go to trial, one can see why a claim is a long process. One can expect a minimum of 18 months 4 years to finalise a claim, depending on whether the claim is issued out of the Magistrates Court or the High Court. (This depends on the amount that is claimed).
The summons is a document which is served on the defendant by the Sheriff. The Particulars of Claim, which is annexed to the Summons, contains the details of the accident/incident and gives details of the damages suffered as a result of the accident/incident (heads of damages).
The Summons is usually responded to by an intention to defend followed by the defendants Plea which is a response to the summons. The defendant will typically deny all allegations of negligence in the Plea. A trial date is then applied for where the plaintiff will have the responsibility (onus of proof) of proving the alleged negligence.
When preparing for trial, the plaintiff will have to prepare his/her evidence on:
The plaintiff always has the onus of proving, on a balance of probabilities, that the act/ omission was negligent and that the negligence caused the plaintiff to suffer damages. Where a defendant raises a special defence such as consent, contributory negligence (where it is alleged that the plaintiff contributed in some way to the damage suffered) or prescription, the onus proof will then be on the defendant.
If the proof of liability is disputed between the parties, the parties can agree to only address the issue of proving liability at the first court hearing and if the plaintiff is successful to then return on a later date to prove how much compensation the defendant is liable to pay to the plaintiff ie. the quantum of the claim.
A trial is held in open court, meaning that the public has access to the hearing as well as the court documents. Often the defendant wants to avoid going to court as they do not want the public to scrutinise them, their practice or their records. It is for this reason that cases may be settled out of court. Be that as it may, cases are defended very strongly; there are constant lengthy negotiations between the parties in the period leading up to trial, wherein the points in agreement and points in dispute are addressed and attempts made to iron out the points in dispute. If however, settlement is not reached, the case will proceed to trial.
If a matter is settled, the offer will include an amount of money that the defendant will pay the plaintiff in compensation of the negligent act/ omission, and to pay the legal costs incurred in instituting the claim.
If an offer is made by the defendants the plaintiff should consider the following when deciding on whether to accept the offer or not:
At A Batchelor & Associates our initial consultation is free. At the initial consultation we will advise you on whether or not you have a claim. If we are of the opinion that your claim is worth pursuing, we will accept the instructions on a contingency fee basis. This means that in the event of the claim not being successful, we will charge no fee (the so-called no win, no fee structure), and if your claim is successful, we will deduct a fee on what we prove your claim to be worth.