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
- 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.
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.