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.
How to Claim from personal injury?
Personal Injury FAQ
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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.
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.