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Making a claim for personal injury


Personal injury claims in South Africa are more common than you think. The Health Department in Gauteng alone paid more than R1 billion to settle medical negligence cases since 2015. So, if another party directly caused your injury, then you can make a claim against them for compensation.


Injuries that people are claiming for range from slip and fall at shopping centres, restaurants or places of business, motor vehicle accidents, medical negligence, whiplash and many more.


Basically, if you get injured and can prove another party was negligent, then you have a case. And you are not restricted to bodily injury. Personal injury claims also cover psychological injury, injury to your rights and reputation, as well as to your property.

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Who can you bring a claim against for personal injury?


You can claim for personal injury from a person, company, government agency or any other legal entity if you can prove they were the direct cause of your injury and were negligent.


Do you remember the hit Australian movie called The man who sued God? In summary, Billy Connolly is a lawyer whose insurance company rejects his claim to replace his fishing boat which is struck by lightning. He then files a claim in court against God, naming church officials as the respondents (as they represent God). The reason he takes to the court is because his claim is repeatedly denied by his insurance company.


The reason for this illustration is because you will likely face a difficult battle getting any claim paid out, unless you can prove direct negligence. That is why making a claim on your own is a bad idea, you should always seek the services of a top lawyer before submitting a claim. The insurance industry is built around the fact that YOU must prove that the person/entity you are claiming from were negligent. However, since you are not a legal expert, you could present a weak claim and therefore not get the compensation you deserve.

How is negligence determined?


The thing about personal injury is that you need to prove the other party acted in a negligent or careless way, and then you need to prove that this negligent act directly caused you harm. So, there are two things: negligence and causality.


Let’s say you are at a restaurant and a broken tile on a step causes you to slip and break your arm, here you can prove there was a broken tile which caused you to fall.  Because the restaurant has a responsibility to ensure your safety, and they did not warn you or cordon off the area where the broken tile was located, they are responsible. However, let’s say you were wearing shoes whose laces came undone and you were rushing, tripping and falling to the fall. Now, you have the broken tile aka “negligence”, but the “causality” of the injury is not necessarily as a direct result of the tile being broken. Your undone laces may have caused you to trip and fall.  Can you see how tricky this can be?


In law, negligence is determined by looking at the conduct of the person who caused you harm and testing this against what a reasonable person in their position would have foreseen and what they could have done to avoid the consequences (injury to yourself).


Let’s say the restaurant owner as per the example above, notices the tile and immediately calls a tiler to repair the tile, then he/she places a warning sign asking you to walk slowly as they wait for it to be repaired. However, in this case you do not heed the sign and as a result you slip and fall. Is the restaurant negligent?


So before bringing a claim, make sure you can prove that the party you are claiming from or suing was careless and directly responsible for your injury. Your lawyer should be able to advise and recommend how to go about doing this.

What types of personal injury claims are there?


You can bring a personal injury claim for any of the following injuries and more.

  • Dog bite
  • Whiplash
  • Slip and fall
  • Medical malpractice
  • Road accident
  • Train or metro rail accident
  • Aviation accident
  • Police assault
  • Product liability
  • Wrongful arrest and detention
  • Reputational damage

Can you claim for psychological pain?


In South Africa you can claim for emotional or psychological trauma as a result of the injury. By law claims for pain and suffering cover both physical and emotional trauma. In most cases the more serious the injuries, the greater the compensation that is paid out to you.

Do you need a lawyer to make a personal injury claim?


You can directly make a personal injury claim in South Africa yourself without the help of a lawyer. However, you need to understand the claims process as well as knowledge of what your claim will be worth. While a legal expert does not need to be involved, you should consider getting the advice of a competent professional especially where your claim is complicated.


For example, if you are have suffered injuries which require long-term medical treatment, or if you can no longer earn an income, or if you want to claim for pain and suffering, in these cases the average person will not know how to quantify the value of the claim. And this will affect the pay out you receive.

How do personal injury lawyers get paid?


Many personal injury lawyers in South Africa charge fees on a contingency basis where he/she is paid a percentage of the money you receive in judgement after the trail or in settlement of your case before trial. This means you pay nothing until the claim is settled in your favour.


Read our latest article about playground injuries and accidents.


How to make a claim for personal injury?

Step 1: Determine if there is an insurance policy to cover your claim


Find out if the person who was at fault has an insurance policy which will cover the injury claim. If you were in a car accident, does the other driver have insurance? If you are involved in a slip and fall, does the property owner have liability coverage?


The reality is that even if you were to sue in a court of law, the person responsible may not be able to pay. If they have insurance cover for the injury claim, you are more likely to be guaranteed a payout should you win.


Let’s say your injuries are minor, you may want to think twice about filing a lawsuit if they other person has no insurance. If your injuries are significant and the other person is clearly at fault you may want to pursue it, hoping that they are able to pay damages should you win in court.

Step 2: Decide whether to appoint a lawyer


In most cases it is a good idea to discuss your case with a personal injury lawyer who can look at the merits of your case and provide you with legal advice. Search the Internet for the best personal injury lawyer in your area; research whether they come highly recommended by examining any reviews or comments made in social media or Google.


Deciding on using a lawyer really comes down to the amount of money you could get and the complexity of your case. In the long run it is worth having a lawyer on your side to fight for you, especially if you know the defendant will put up a fight.

Step 3: Decide to file an insurance claim or a lawsuit


There are many personal injury cases which are settled by insurance companies and even without an insurance company, by the organisation, before even getting to court. You would need to find out if the person at fault is insured, get the insurance company’s details as well as their policy number. You would then need to notify the insurance company that you intend to make a claim.


The same process applies to if you are making a claim against a government department – you will notify them of your intention to claim and submit everything to them as per their requirements.


You can file a third party claim directly with the insurance company of the person who is at fault or you can submit a claim directly to the Road Accident Fund (RAF) in the case of a motor vehicle accident – however you cannot claim from both for the same injury.


Usually the insurance company will provide you with a claim form and detail of the various documents they require from you such as:

  • Identity verification
  • Police case number
  • Affidavit letter from you detailing your account of the event
  • Witness statements
  • Video or photographic evidence
  • Evidence of medical invoices and medical reports
  • Evidence of salary/income if you are claiming loss of earnings


If your claim is rejected or negotiations break down, get the personal injury lawsuit process started immediately with your lawyer.

Step 4: Consult with a lawyer


Meet with an attorney if you haven’t already consulted with an experienced personal injury lawyer. Make sure you are appointing someone who has experience handling personal injury cases. They will advise you of the best approach and will also clarify how they will bill you for their fees.


Your attorney will prepare all the documents required by the court and submit summons on your behalf. A summons is the kickoff of the legal process and is issued at the magistrates or high courts after which it is served to the defendant by a sheriff of the court.


Basically thereafter, there is a lot of back and forth between your attorney, theirs and the court before a trial date is set.

Step 5: Court proceedings and settlement


Once a date is set, you will be prepared by your lawyer for court as well as any other witnesses that may be called on the day. Sometimes at this stage the defendant (the person you are suing) may make an offer to settle which your attorney will discuss with you and either accept or reject. If settlement is accepted and all documentation is signed, you will not need to go to court at all. If there is no settlement the judge will hear both arguments and then make a ruling. If the Judge rules in your favour, he/she will also award damages – that is the amount the that must be paid to you by the defendant.


Personal injury claims can land up being very protracted, taking up to three years to reach completion.


Even if the judge rules in your favour, the opposing lawyers could appeal which will add further time to the proceedings. That is why it is often best to settle out of court.

Step 6: Payment of compensation


Once your claim is finished, by settlement or order of court, and if the defendant does not appeal, your lawyer will then draft a bill of costs. This is then submitted to the defendant’s attorneys for approval and payment.


Once your attorney’s receive payment they will present you with the reconciled statement of costs thereafter payment will be made. Payment can take up to six months from the date of the court order, especially if the defendant does not have available funds to pay. It may be necessary to instruct the Sheriff of the court to attach their assets to be sold at auction to make sure the court ordered payment is met.


Once the payment is made, any legal fees that you owe will be deducted from the compensation granted by the court and paid over to you.

How long do you have to submit a claim?


In South Africa, you generally must proceed with a personal injury claim within three years from the time when the negligence took place. However, in some cases a person can still claim after this period for example if a child has been injured, the long-term effects of the injury needs time to assess the long-term effects of the injury, sometimes spanning five years.

Personal Injury FAQ

What is a definition of Personal Injury ?

According to the Oxford Advanced Learner’s Dictionary, Personal Injury means physical injury, rather than damage to property or to somebody’s reputation.

What is a Personal Injury Claim?

A personal injury claim can be defined as a claim for damages. Damages that a person has experienced as an outcome of injuries, suffered because of an accident or where the outcome of the accident was the death of his or her financial supporter/breadwinner.

The negligence of another person must have been the cause of the accident.

What are examples of Personal Injury claims?

  • The most common personal injury claim is a motor vehicle accident where a person is being injured or where the breadwinner of a person is killed, where you or your breadwinner were not responsible.

Other examples that can promote personal injury claims:

  • Dog bites or dog attacks.
  • Slip, trip and fall; where a third party acted negligently in a public area, on business premises or in a shopping centre.
  • Injury as a result of a motorcycle accident where you are not responsible.
  • Injury as a result of a bicycle accident, remember as a cyclist you still need to follow the same road legislation as other road users.
  • Injuries as a result of medical negligence; When a medical practitioner failed to act or performed according to medical standards.
  • Injuries caused by a faulty product; inadequate instructions and warnings.
  • Any other cases where another person was at fault or directly the cause of your loss or suffering.

Can a Personal Injury case be reopened?

Usually once a personal injury case has been settled, you cannot reopen the case, but there are always exceptions. Get in contact with our legal team to have a look at your case and reasons why you want to reopen the closed case.

What happens if I was at fault for a Personal Injury?

It will be reported as a fault accident if you are single-handedly responsible for a road traffic accident. It is not likely that you will be able to claim any personal injuries, but any passengers in your vehicle will be able to claim for personal injuries against you. Remember, personal injuries are if you suffered any injuries that was not your fault.

How long do I have to claim for Personal Injury?

With personal injury cases you have three years from the actual date that the incident happened, to submit your claim against the negligent party.

What can I claim for with a Personal Injury?

Someone who is a victim of personal injury can claim for the following compensation for damages suffered:

  • Past and future medical expenses – any expenses for any medical treatment that is necessary as a result of the incident.
  • Past and future loss of income – time off work, because of recovery after the incident, results in unpaid sick leave, unemployment as a result of the injuries of the incident and future loss because of work incapability because of injuries.
  • General damages expenses – an amount of money paid to you for compensation for any suffering and pain experienced because of the incident.

Funeral expenses as well as loss of financial support for dependants can be claimed in cases where the breadwinner died because of the incident.

Before the settlement of the case is reached, the amount claimed for can be amended at any time. The amount claimed for is equal to the position that the person claiming for damages would have been in, if the incident never happened.

How do I proof damages experienced because of Personal Injury?

Examples of damages or harm experienced or suffered can be bodily injuries, financial loss, mentally or psychological trauma. Expert opinion will prove the severity of the damages experienced and narrative evidence will proof financial loss. If you answer yes to one or more of the following questions you have experienced harm and can claim for personal injury.

  • Was there any hospital or medical expenses because of the injury you suffered?
  • Did you suffer any loss of income or financial loss because of the incident?
  • Did you suffer from any serious pain because of the injury?
  • Was your capacity of work affected by the incident?
  • Did you suffer from any mentally of psychological trauma because of the injury?

Who is responsible for my Personal Injury?

Contact our legal team who will be able to advise you who is responsible for your injury, because sometimes it is not easy to know who is responsible for the injuries you suffered.

What is the process of a Personal Injury claim?

Get all your information, evidence and required documentation together when contacting our legal team, for them to advise you on the possibility of success of your claim. The following are some of the processes that need to be followed and required documentation needed when submitting a claim:

  • You must provide our legal team with a written document with the reasons why you want to claim from the negligent party.
  • You must submit completed required claim forms within the compulsory time frame.
  • In order to establish the causes, you will have to go for assessments and get expert opinions from medical experts.
  • In order to prove liability of the negligent party the incident must be investigated.
  • You will provide our legal team with a mandate for them to proceed with legal steps against the negligent party.
  • The negligent party has a time duration in which they need to decide whether they will settle out of court or take the case to court. It is preferred to settle out of court as the process of a trial is costly and tedious. If they decide to go to court a date will be set.
  • The trial will then proceed in court. For medical experts to prove the amount of damages owed to you, there might be more medical assessments that need to be done. Our legal team will represent you in court and will provide all the evidence and call all the necessary witnesses to support your claim.
  • The negligent party’s legal representative will argue your claim as to why they don’t think it is a personal injury.
  • After the Judge has analysed the case your claim can either be dismissed or you will receive compensation from the negligent party.
  • At any moment in the process of the trail it can be dismissed if the accused party decides to offer you a fair settlement.

Why should you approach our legal team to assist with a Personal Injury claim?

It is important for your own sake to approach our legal team to assist you with a personal injury claim. If you do it on your own there is a risk that you will accept a compensation offer which is much less than what you deserve, if your claim was even successful. Many claims get declined because of not having expert advise and assistance.

Is there a Personal Injury document “checklist”?

When approaching our legal team to assist you with a personal injury claim, it might be easier if you have some of the information and documents ready for them to have a look at.

  • Your Identity Document.
  • Necessary completed claim forms.
  • Information with regards to the incident, date and time.
  • Details and contact details of the person that caused your injury or injuries.
  • Details and contact details of anyone else affected by the incident.
  • Details and contact details of any witnesses of the incident.
  • Details and contact details of the hospital or emergency unit where you were admitted after the incident as well as your patient file number.
  • Details and contact details of all the medical professionals that examined or treated you after the incident.
  • Police case number of the incident.
  • Any photos or video footage of when and where the incident took place as well as to what happened.
  • Dates when you were not at work (possible loss of income), because of the injury suffered.
  • If possible, any written statements from the negligent party or witnesses of the incident.
  • Proof of any medical expenses, invoices and receipts. Proof of any related expenses to the injury.

If the breadwinner was killed in an accident/incident and the claim is submitted by the dependant; the following is needed:

  • Identity Document of the deceased.
  • The deceased’s death certificate.
  • A copy of the deceased’s latest payslip.
  • Proof of funeral expenses

Make a list of all the questions that you might have when you consult our legal team.

Make copies of all the documentation provided to our legal team and keep it safe should you need it as evidence at a later stage.

Which court will be handling my Personal Injury case?

To establish which court will handle your personal injury case depends on the value of your personal injury claim. If the value is less than R400 000 the case will go to the Magistrate’s Court. If the expected value is more than R400 000 your case will be handled by the High Court. The following article will explain the above-mentioned courts to you.

What is a reasonable compensation offer?

Different claims are equal to different compensation amounts. The compensation amount depends on circumstances and the nature of the claim.

Factors taken into consideration when calculating a pay-out for a specific claim:

  • What happened at the incident or accident?
  • What are the consequences as a result of the incident? For e.g. disability, unable to work, unable to provide for your family.
  • What were the most recent compensations offered for similar cases?

Again, it is advisable for you as the injured to approach our legal team for the following reasons:

  • Your attorney will provide guidance during the claim process as this is their field of expertise, they know what to expect, what the risks are as well as the benefits of your decision to accept or deny a compensation offer.
  • They know how the compensation offer is calculated and will advise if the amount offered is reasonable.

Many victims of personal injury have the tendency to settle for much less than deserved. The reason for this could be poor advice from their attorney or insufficient claim preparation. You can also claim for professional negligence against the attorney who advised you to settle for less.

Whether to accept an offer or not?

The decision to accept or deny an offer can only be made by you, the injured. You are the only one who knows what amount of damage was done or what kind of harm was experienced. You are the one that suffered from the injury or loss and who knows what sufficient compensation would be acceptable.

You should think about the following when making a decision, our legal team will also provide guidance in making your decision:

  • Is the compensation amount an acceptable amount for damages suffered because of the incident?
  • What are the chances of an increased amount of compensation if the case is taken to court?
  • What will the trial costs be if you do not accept the compensation offer? Make a list of the expenses, should the case go to court versus the settlement amount.
  • Will the emotional stress related to a court case be worth it?
  • The financial expenses for your legal costs as well as the defendants (negligent party) should you lose the case.