How to claim 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?

Payment of compensation
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.