Personal Injury & Medical Negligence Claims
RAF claims, medical malpractice, slip and trip accidents, animal bites and other injuries
With personal injury claims often amounting to astronomical pay-outs, the person on the receiving end of a personal injury claim and being sued for personal injury, may harbour the same sentiments expressed by Machiavelli when he said: “If an injury has to be done to a man it should be so severe that his vengeance need not be feared”.
The victim of a personal crime, however, is not automatically guaranteed any form of reparation, due to uncertainties such as whether there is a claim, whom to claim from and how to prove that the claimant indeed suffered a personal injury. So, when a personal injury claim arises, whom should the claimant claim from; and what does a ‘contingency fee’ agreement between client and attorney entail?
Who to contact
What constitutes a personal injury claim?
Besides those mentioned here, there are numerous causes of personal injuries that can befall an unfortunate victim. Accidents at work or at home, on holiday, accidents resulting from defective products, public liability claims. The list goes on.
A person has a personal injury claim when there has been a lessening in a highly personal right or personality interest not affecting the person’s financial position. A highly personal right has been impaired when a person has suffered pain, emotional shock, psychological illness, psychiatric injury or physical suffering due to the fault of another. Where a person’s physical body has been violated, he has a patrimonial and non-patrimonial claim i.e. medical expenses and loss of income as well as monetary compensation for his pain and suffering. The person does not have to suffer the physical injury himself; when someone has suffered an emotional shock because of witnessing another person’s suffering, he also has a personal injury claim against the guilty party.
Some of the more common types of personal injury claims include:
• Road Accident Fund (RAF);
• Medical Malpractice and Negligence;
• Slip & Trip Accidents;
• Animal bites and injuries.
Road Accident Fund (RAF)
When a person sustains an accident on a South African road, the injured person has to lodge a road accident claim against the RAF. Some law firms have specialist road accident attorneys. The claimant has to prove that he has suffered physical injury or a loss due to the physical injury or death of a breadwinner because of the negligent driving of another. The negligent person is indemnified against claims for this type of damage. The injured person cannot claim from the RAF for the damage, for example, done to his vehicle (the person who caused the accident is liable for this), but only for medical expenses, loss of income or maintenance, pain and suffering or emotional shock.
A person who, as a result of witnessing or learning of an accident, has suffered emotional shock cannot, however, claim these damages from the RAF, but rather from the negligent party. In certain circumstances, the injured party can claim damages due to physical injury or death from the negligent party for instance if the RAF is unable to pay the damages or if the driver or the owner of the vehicle was solely responsible for the accident and no negligence on the part of the injured party can be proven.
Medical Malpractice and Negligence
A patient who has sustained a personal injury due to the negligence of a medical practitioner has to prove the following for his claim to be successful:
• That there was a duty on the medical practitioner who undertook the treatment of the patient;
• That the duty was breached, because the medical practitioner did not conform to the relevant standard of care;
• That the breach caused injury to the patient;
• That the injury caused financial or emotional loss to the patient.
The test for concluding if there was negligence on the part of the medical practitioner is, therefore, basically the normal test for negligence i.e. what would a reasonable person in the circumstances with the same level of expertise have done to protect against the foreseeable harm. When a patient signs an indemnity form, it does not mean that the medical practitioner is acquitted of all blame for injuries which he has caused.
A medical practitioner has to explain the material risks of the treatment to a lucid patient and if this was not done, the patient cannot be held to the indemnity which he consented to. A medical practitioner can furthermore not be indemnified against gross negligence on his part. In the case where a patient is unable to give consent, the relevant question is whether the patient would probably have given his consent if able to do so. The hospital can also be held vicariously liable for negligent conduct by its personnel, meaning that the aggrieved patient can claim the damages suffered from the hospital itself.
Slip and Trip Accidents
Slip and trip accidents can give rise to a personal injury claim against the owner of the premises if said, as required by law, but fails to keep the property free from possible hazards or refrains from warning people of potential danger which might occur. These hazards include slippery surfaces, areas which are not lighted properly, failure to put up railings or barriers and failure to draw attention to dangerous areas.
Animal bites and injuries
Injuries from animals are a frequent occurrence in South Africa as ferocious dogs are often kept for security reasons. The injured person has a remedy in such a situation against the owner of the animal. The claimant does not have to prove that the owner was negligent or that the animal was under the control of its owner, the owner is liable solely based on the fact of ownership. When an animal is under the control of a negligent handler, who is not the owner of the animal, the injured person can sue the handler for damages suffered. The claimant only has to prove that the animal acted contrary to the nature of domesticated animals in general. The injured person’s claim will not be successful if he provoked the animal in a way that caused it to act contrary to its nature or if the injured person was illegally on the property where the animal injured him.
Legal matters which require legal expertise
A person claiming damages for personal injury as a result of the acts of another has to prove that the personal injury happened as well as the quantum of the damages that was suffered. An injured person should record and keep all evidence of the personal injury to enable him to make a convincing case in court. A competent personal injury lawyer will be able to give advice as to what an injured party may claim and the process which has to be undertaken to lodge a claim (with RAF-claims, specifically, there is a lot of red tape).
~ Natasha van Greuning (LLB)
A victim of a personal injury has to be able to receive compensation for the damage that he suffered, which he will best be able to do with the help and expertise of medical malpractice and personal injury attorneys.
In South Africa, the onus is on the claimant to prove the negligence of the medical professional. If successful, the next issue is to decide on the quantum of the claim – here the claimant must prove how much compensation the defendant is liable to pay to the claimant.