Personal Injury FAQ

1. What must I prove?

The law of personal injury falls within the law of delict. In order to successfully prove your 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.

2. What is negligence?

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.

3. What is a 'duty of care'?

Where injuries are sustained as a result of the act or omission of another person, one will talk about a ‘duty of care’ or a ‘duty to act’. Not everyone has a duty to act; such a duty will only exist where a person holds a particular position or is acting in a particular capacity, for example police officers, life guards, child care providers, etc. Where a person is under a duty to act and fails to do so, he is negligent.

‘Duty of care’ generally refers to the duty borne by a medical practitioner to provide reasonable medical care and pertains to medical negligence claims. See Medical Negligence.

4. How do I prove that I have suffered harm?

After it has been established that negligence is present, one must establish that harm has been suffered. The harm referred to can take the form of bodily injury or mental or psychological trauma. It is necessary for the harm to result in damage.

Damage can refer to patrimonial (monetary) or non patrimonial loss. For example, if you sustained an injury as a result of slipping on a wet floor in a supermarket, the following questions need to be answered:

  1. Did you incur hospital or medical expenses as a result of the injury you sustained?
  2. Did you lose income as a result of the injury you sustained?
  3. Has the injury affected your capacity to work?
  4. Have you experienced significant pain and suffering as a result of the injury?
  5. Have you experienced mental or psychological harm as a result of the injury?
  6. Has the injury resulted in a loss of amenities of life?
  7. Have you suffered financial loss as a result of defamation of character?

If you have answered yes to one or more of the above questions, you have suffered harm.

The degree of harm suffered is proved by way of expert opinion and financial loss will be proved by way of documentary evidence.

5. What if I signed an indemnity form?

An indemnity form is an agreement in which you waive your right to legal recourse in the event of harm caused by the wrongdoing of the other party. The enforceability of such an agreement remains a grey area in our law. Even though one cannot contract out of gross negligence, a signed indemnity is, in principle, enforceable and a valid defence. South African courts, however interpret these agreements narrowly and the enforceability thereof will be determined on the facts and circumstances of each case.

An indemnity clause can be crossed out and initialled, thus the rest of the terms are agreed to, but the signatory is protected against not being able to claim for damages. Alternatively, adding the words, "the rights of the signatory are reserved herein" under your signature will have the same effect as the above.

Another fact to remember is that another person cannot sign an indemnity on your behalf. A parent signing an indemnity on behalf of a child/ parent/ friend is invalid and cannot be used as a defence in a claim for damages.

The often menacing Latin maxim: "caveat subscriptor" applies in our law. The maxim can be translated to mean "let the signer beware". A person is prevented from denying responsibility for having signed something without reading the clauses. It is of the utmost importance that a person reads the clauses in an indemnity or contract very carefully and that they are aware of what they are signing at all times.

6. How do I know who is responsible for the harm I have suffered?

Sometimes it's difficult to know who is responsible for the harm you have suffered. Where the person who acted negligently was under a duty to act because he held a particular position or was acting in a particular capacity, it is possible that his employer will be held vicariously liable. For example, where the negligent person is a police officer, acting within the course and scope of his employment, the Minister of Police will be liable for any harm caused by his negligent conduct.

Your attorney will be able to advise you on who is liable in your particular circumstances.

7. What if I was injured at work?

In South African law, an employee is prohibited from suing his employer for damage caused as a result of an injury which occurred within the course and scope of his employment.

The employee, however will have a claim against the Workmen’s Compensation Commission (WCC). For more information herein, visit www.labour.gov.za/find-more-info/all-about-workmens-compensation

8. What is prescription and how can it affect my claim?

When a claim prescribes, the time period that one has to claim for damages comes to an end. In other words the claim is extinguished by prescription.

The person who has allegedly suffered damages as a result of someone else’s 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.

10. After negligence is established, what then? How does the claimant get compensated?

The "compensation" claimed is divided into what are called: heads of damages. The various heads of damages will be addressed in detail, they are:

  1. Past Hospital and Medical Expenses;
  2. Past Loss of Earnings
  3. Future Hospital, Medical and Supplementary Expenses
  4. Future Loss of Earnings and Interference with Earning Capacity
  5. General Damages, Loss of Amenities of Life and Disfigurement.

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 negligent act/ omission 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 on which the negligent act/ omission occurred 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 negligent act\omission. It is a contractual obligation between the plaintiff and his/her medical aid that the medical aid is reimbursed upon successful finalisation of claim against the negligent party. 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 negligent incident/treatment/ procedure is claimed under this head of damage. This includes all loss of earnings from the date of the 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 incident/ treatment/ procedure 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 negligent act/ omission. 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/s 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.

The "other expenses" referred to above include travelling expenses, equipment, renovations etc. If for example, the plaintiff has been rendered paraplegic, the other expenses will include a wheelchair, house renovations to include wider doors and lower surfaces, fitted rails and ramps etc.

When all the expert reports have been received, the figures are sent to an actuary to calculate what the costs of the procedures/treatments will be in the future or when the treatment is anticipated. The figures are then amended in the Summons to bring it in line with the medico-legal reports from the various experts.

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 psychologist’s 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 negligent act/ omission 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 negligent act/ omission may be consulted by the experts and attorneys in order to obtain relevant information about the plaintiff such as: the plaintiff’s abilities, promotional prospects, retirement age, skills needed for the job etc.

This head of damages also takes into account how much time off work the plaintiff will need to attend medical treatment.

General Damages

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 negligent conduct, 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 deceased’s 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 dependant’s 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.

11. Preparing for Trial / Offer of Settlement

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. It may also include the following:

  • a clause stipulating that the offer is made without the admission of liability;
  • a confidentiality clause, wherein plaintiff must undertake not to disclose the amount awarded or the details of the basis for the claim for negligence;

If an offer is made by the defendants the plaintiff should consider the following when deciding on whether to accept the offer or not:

  • Whether the amount of money offered is reasonable compensation for the damages suffered as a result of the negligent act/omission;
  • Whether there is a good chance that the court will award more money if the matter is taken on trial;
  • If the offer is not accepted, the costs involved in running a trial should be weighed against the savings in accepting the offer;
  • The emotional strain in giving evidence in court, the terrorizing cross examination and risks involved in being cross examined;
  • The risk of losing the case and having to pay your legal costs and the defendant’s costs;
  • The risks that the court may not be able to decide if the defendant is negligent and liable in the circumstances thus ordering “absolution from the instance” effectively meaning that the plaintiff loses his/her claim, having incurred huge costs in the process.

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