What happens when you need to make a personal injury claim caused by a medical malpractice, road accident or a slip and trip in the mall?
Justmoney investigates the details of personal injury claims and asks the experts for their advice.
When it comes to medical malpractice, Hollywood movies are guilty of making one re-think undergoing a procedure on the operating table. In the 2007 movie Awake, mayhem meets malpractice when Hayden Christensen’s character experiences anesthesia awareness during a surgical procedure.
In South Africa, when it comes to medical malpractice, the plaintiff bears the onus of proof.
“You can only succeed in a case of medical malpractice if you can prove that a negligent act led to personal injury. You have to link negligence to the outcome of the procedure,” says Chris Smit, senior associate at DSC Attorneys, a firm that specializes in personal injury claims.
Smit says that DSC Attorneys, like many firms in South Africa, offer one free consultation for people who want to institute a personal injury claim.
He adds that often medical malpractice cases are unsuccessful when plaintiff don’t get proper legal advice or make a claim timeously.
“You need to institute the legal proceeding three years from the day of the incident. If a summons is served a day later than this period, the case can no longer be taken further,” says Smit.
Slip and trip cases
‘Slip and trip’ is the commonly used term when you injure yourself on someone else’s property.
The Hollywood version of suing a party for large amounts of money does not apply to South Africa. According to Smit, America uses the punitive system whereby the defendant has to pay a separate settlement as a punishment fee on top of damages awarded to the plaintiff. In South Africa the precedent system is used: you only get paid for your damages.
If you slip and fall in a water spill at the mall, an investigation will be done to conclude whether the building owner, the store owner or the maintenance company was responsible for the injury inflicted on the plaintiff.
By law the owners of a business or property are required to keep their premises in as safe a condition as possible to prevent potential hazards to the public.
If these requirements are not met and you do get injured on their property, you may have a valid claim.
Road accident cases
According to the Road Accident Fund (RAF) guide, a claim against the RAF can be made for pain and suffering.
This is an amount of money allocated for compensation for the pain and suffering you may have undergone as a result of a road accident.
Smit adds that when you are involved in an motor vehicle accident, you are only allowed to claim from the RAF and not the person who caused the accident. If you are the injured party and contributed to 20% of the accident, you will only be awarded 80% of your claim.
The damages that the RAF may compensate a third party (claimant) for are: past and future medical expenses, past and future loss of earnings, past and future loss of support, funeral expenses and general damages.
According to Smit this is why, for example, a 10-year-old child and a 30-year-old pianist would get a different settlement amount from the RAF if they suffer from a wrist injury.
“To illustrate, a child has the ability to heal quickly and it is likely that no medical repercussions will follow. A 30-year-old pianist will not heal as quickly and it may affect his/ her ability to earn money through playing the piano. Here, past and future loss of earnings plays a big role in the amount of money that may be claimed,” says Smit.
According to the RAF, claims must be lodged within three years from the date of accident if the identity of the driver who caused the accident is known, or within two years if the identity is unknown.
If you feel you have a case for a personal injury claim against a person or institute, go to a legal firm that specializes in such claims. Often their first consultations are free.
Timing is vital. Get legal representation before the claims period lapses.