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PERSONAL INJURY LAW - FAQ's             Back to home page

 

Personal Injury Law - if you have suffered injury, loss or damage as a result of someone else’s action or failure to act, you can claim damages or compensation from that person.

Many Law Firms and Attorneys will consider instituting lawsuits on your behalf on a contingency fee basis in terms of The Contingency Fees Act 1997 (Act No.66 of 1997) ie a ‘no success – no fee’ arrangement. This can be for personal injury claims as well as other claims for damages, or even recoveries of monies. What this means that in certain cases attorneys may agree with their client that if the client looses the case, the attorney will not charge a fee at all, but if the client wins his case, either an additional fee will become payable or the attorney will be entitled to a percentage of the money that has been recovered for the client in the lawsuit.

If the success fee is higher than the Attorneys’ normal fees, such fee may-

  • Not exceed the Attorneys’ normal fee by more than 100 per cent, and
  • In the case of a claim sounding in money, not exceed 25 per cent of the total amount awarded or any amount obtained by the client in consequence of the proceedings.

Claims could be against:

  • The SAPS.
  • The Department of Correctional Services
  • Doctors and hospitals for medical malpractice,
  • The Road Accident Fund (RAF) for vehicle accident claims.
  • Metrorail for rail accident claims.
  • Professional Malpractice claims
  • Insurance Companies or government bodies.
  • Owners of pets for dog-bite claims.
  • Injuries sustained during slips and falls
  • Claims for assault.

Bodily injuries can have long term consequences and you have a right to claim compensation for these injuries as well as for the costs of any medical treatment which you have received or may undergo in future. 

The Road Accident Benefit Scheme Bill, which is expected to become law sometime in 2015, is intended to replace the fault based system administered by the Road Accident Fund - you can read more here.

Do not try and bring or defend an action for damages without the help of an attorney. Many claims fail for lack of expert help – and even if you win without the help of an attorney, there is a danger that you end up accepting a settlement which is smaller than the one to which you were entitled. Therefore please consult an attorney.

Litigation funding - in 2004 champerty ( the term that recognized litigation funding as illegal) was now declared legal when the Supreme Court of Appeal allowed for external funding in legal disputes. While lawyers are not allowed to take more than 25% of the total settlement, there is no law in South Africa that stipulates how the money awarded should be split between the financial backer and the plaintiff. There are now a few private entities in South Africa who invest in legal disputes, purchasing claims or judgements, 'co-investing' with the creditor or claimant or funding the litigation, negotiation and settlement of a claim. The firm financing the litigation should not also be the attorney of record, as this situation could create a conflict of interests. It could be in the attorney's interest to settle a case where there was little chance of winning, whereas an early settlement may not be to the greatest advantage of the plaintiff.

Christopher Consulting offers a comprehensive range of litigation (funding) solutions and you can read an overview of their services here.

 

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  1. What must my lawyer prove to win my case?
  2. When do I have a claim against the SAPS?
  3. What can my lawyer sue for?
  4. When do I have a claim against the Dept of Correctional Services?
  5. When do I have a claim for medical malpractice?
  6. What about claiming damages for injuries sustained during slips and falls?
  7. On whom lies the onus to establish negligence on the part of the defendant?
  8. When can I make a claim against the RAF?
  9. What if I was not injured in an accident but my car was badly damaged?
  10. What procedure should I follow after a motor vehicle accident?
  11. What if I was partly to blame for the accident?
  12. What type of damages can I claim for?
  13. What is the difference between general and special damages?
  14. Can one claim for emotional shock in South African law?
  15. How are personal injury claims quantified and is allowance made for social factors in the subjective value of money?
  16. What constitutes past medical expenses?
  17. What constitutes future medical expenses?
  18. What constitutes past loss of earnings?
  19. What constitutes future loss of earnings?
  20. How are claims for loss of support calculated?
  21. What is the ‘expected period of support’?
  22. What are ‘collateral benefits’?
  23. How do I prepare to consult with my attorney?
  24. How long will it take to complete a claim against the RAF?
  25. What are some of the documents my attorney will require for a claim against the RAF?
  26. What pages must be contained in the hospital or clinical records?

 

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1. What must my lawyer prove to win my case?

 

For a delictual claim to succeed the person making the claim (the claimant) or attorney must prove that:

  • The action of the other person was wrongful because it caused harm to the claimant or their property.
  • The person performing the action was negligent (was at fault) or acted intentionally.
  • The claimant suffered loss which can be given a monetary value (such losses are called damages)
  • The monetary loss (damages) was suffered as a result of the action of the negligent person ie the action of the negligent person caused the monetary loss.

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2. When do I have a claim against the police?

 

A growing number of people are now suing the police for damages in court instead of making a complaint against the police. Reasons for this include:

  • If you are successful you get compensation (cash)
  • It can sometimes deter the police from doing the same thing again, and
  • People are realizing that taking a complaint against the police seldom works.

Shockingly, in October 2012 it emerged in Parliament, through questioning on the SAPS annual report, that their contingent liability (a liability the entity may have to pay, depending on the outcome of a future event, such as a court case) had quadrupled to R20bn, and that the bulk of this amount is made up of civil claims. Although the amount finally paid out could be far less, many have suggested that the police are ‘defending cases they cannot win and contesting cases that should be settled out of court’

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3. What can my lawyer sue for?

 

Wrongful Arrest-unlawful arrest and detention is called false imprisonment. The police must justify any arrest and detention, so if you think that the police have acted outside their powers it is worthwhile getting further advice from an attorney. False imprisonment can happen on the street, in your home, in a police vehicle and of course at the police station.

Assault-this is much wider than people think.  You are assaulted as soon as someone touches you without having a lawful reason to do so, and when they put you in fear of violence. Of course it includes being punched and kicked and includes illegal body searches. If you have been assaulted or injured by the police it is important to see a doctor straight away and have your injuries noted. You should also take photos of any injuries if possible.

Malicious prosecution-this is when you have been prosecuted for something that you did not do. You have to prove that the police had no reasonable cause to prosecute you and that they had a ‘wrongful motive’ in doing so. You also have to win your case which means that the charges were either dropped before the case went to court or you were acquitted (found innocent) in court.

You can also sue the police for negligence, wrongful death, misfeasance in public office, (abuse of power) breach of human rights, shooting incidents, vehicle accidents, damage to property and legal expenses. 

Between April 2015 and December 2015, there were 6133 claims were registered against the Minister of Police -  and in the last 10 years R417 629 905 has been paid out. 

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4. When do I have a claim against the Department of Correctional Services?

 

There are about 170 000 prisoners in South African prisons, consisting of both sentenced and trial awaiting prisoners. The prisons are only designed to accommodate 130 000 inmates which leads to overcrowding and difficult conditions.

In November 2012, in response to a question in Parliament, the Minister of Correctional Services stated that the Department paid out R27, 7 million in the past year for claims against the department.

Some claims against the department included:

  • General damages
  • bodily injuries
  • defamation
  • deaths and injuries in detention
  • breach of contract and motor vehicle accidents
  • assault – which included a claim of R2,5 million which the Department had to pay

According to the Minister many of the claims were cancelled because the Plaintiffs failed to issue summonses in their matters. These included a claim for R1, 8 million for damages, R3 million for a claim by an inmate who alleged that he was infected with the HIV virus, and a R9 million claim for assault. Consult with an attorney if you feel you may have a claim against the Department, as they can make a realistic assessment of the nature and size of your possible claim, remembering that judges are hard on lawyers who bring exorbitant sized claims to court.

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5. When do I have a claim for medical malpractice?

 

  • If the doctor did not obtain the consent from a parent or guardian the doctor will have acted unlawfully. In such a case you will have a claim, irrespective of the outcome of the operation or treatment-unless, of course, if the doctrine of necessity can be invoked.
  • If the doctor operates or gives other treatment with your consent, but does not take reasonable care in carrying out the operation, allowing you to claim for damages incurred as a result of lack of care. For such a claim to succeed, you must show that you suffered harm through the doctor’s failure to exercise the necessary care that should have been exercised in the circumstances.

Damages claims are not always successful as not every mistake amounts to negligence. The law recognizes that even a reasonable careful doctor will sometimes make an error of judgement, administer the wrong treatment or perform the wrong operation with dire results of the patient. In these circumstances the patient has no remedy against the doctor.

You may claim damages from a doctor or member of the hospital staff if you suffer injury through negligence. Hospitals are liable for the wrongs committed by doctors or nurses employed by them and actions can be instituted against them. Before taking any action against the hospital, make sure that the doctor or nurse was acting within the scope of his or her employment at the hospital at the time the wrong was committed.  Most doctors insure themselves against possible malpractice suits.

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6. When can I claim damages for slip and fall accidents

 

Slipping occurs when the friction between foot and the floor is insufficient to prevent movement between the two surfaces, but is less of a problem - when detected by the individual,  he/she is likely to maintain his/her balance. Slides, however, may become unrecoverable, leading to body impact and possible injury. Tripping is less common than slipping (when a foot catches on an obstacle or object), but may also lead to body impact and possible injury.

In the workplace:

A significant number of injuries in the workplace is attributable to slipping, sliding, tripping and/or falling, e.g. on ramps, steps, stairs etc. Over the period 1999 to 2002 alone, according to a survey done by the Safety in Mines Research Advisory Committee, 1585 people slipped or tripped over objects and sustained injuries.

Section 35 of Act 130 of 1993 prohibits employees or their dependants to litigate against the employer in such instances, but makes provision for certain benefits to be claimed if injured, for example medical treatment for a maximum period of 24 months – the cost of which is to be paid by the  Provision fund .

Other places:

Should you suffer harm (injuries or damage) due to slipping, sliding or tripping, you can claim damages against the person or entity responsible. Responsibility / accountability would normally be due to negligence on the part of such a person or entity - in his / her failure to prevent such an occurrence from happening. Note that ‘the mere fact of a slip is no evidence of negligence on the part of the person upon whose property the slip took place’ – Koenig v Hotel Rio Grande (Pty) Ltd 1900 CPD. 

The test for negligence was set out in Kruger v Coetzee 1966 (2) SA 428(AD) – liability for culpa arises if the reasonable man in the position of the defendant would foresee a reasonable possibility that his conduct may cause harm to another person, and would take reasonable steps to guard against such occurrence. What such steps would entail will depend on the particular circumstances of every case.  

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7. On whom lies the onus to establish negligence on the part of the defendant?

 

The plaintiff has a duty to prove negligence on a balance of probabilities, but sometimes, however, is not in a position to produce evidence on a particular aspect, such as where the matter is peculiarly in the knowledge of the defendant – less evidence will then suffice to establish a prima facie case.

In these types of cases the law place an evidentiary burden on the defendant to show what steps he took to comply with the standards to be expected.

A fundamental aspect of the onus which the plaintiff bears is the obligation to shown what the cause was for such a ‘slip and fall’ on the date of the incident – if the plaintiff cannot show that, the claim must fail.

In Christine Camilleri v Old Mutual Investment Group Investments, SA WCHC, 2007 – the plaintiff had to prove that there was enough dust on the floor to cause her to slip. This case was heard in December 2011 – plaintiff, 51 years old, slipped and fell in a shopping centre and sustained injuries. The premises were under the control of the defendant as property manager. The plaintiff claimed damages arising from her injuries. The plaintiff’s case was that the defendant was negligent, because he breached his duty of care in respect to the premises. She was unaware of what made her fall, though, and thus negligence on the part of the defendant could not be proved – the case was dismissed with costs.

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8. When do I have a claim against the Road Accident Fund?

The Road Accident Fund (RAF) is a fund that has been established by the Road Accident Fund Act and the main purpose is to limit the liability of the negligent driver of a motor vehicle. A third party claim is a claim by a person, or a dependant of that person, who received a bodily injury or who died as a result of a motor vehicle accident caused by the negligent driver of a motor vehicle. Third party claims are made to the RAF.

Road accidents in all vehicles and motorcycles are automatically covered in terms of the Act, but the Fund does not cover damage to vehicles or things inside the vehicle which damages must be claimed from the person who caused the accident or their insurance company.

A claim can only be made against the Fund if:

  • The person who caused the accident was negligent and at fault. Therefore if a person is injured and they are not to blame for the accident, (in other words, the person injured was not the negligent driver) then they can claim compensation from the RAF.
  • You will only get money from the fund if you did not cause the accident. This will include where you were the only person and vehicle involved.
  • You are the dependant of a person (the breadwinner) who was injured or died in a motor vehicle accident caused by the negligent driving of a motor vehicle by another person.
  • You are a close relative of the deceased in respect of funeral expenses.
  • You are under 21 years but you must have the support of a parent or legal guardian.

You can claim if you were involved in an accident as a driver or a passenger in a motor vehicle or a motorcycle, or if you were a pedestrian.

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9. What if I was not injured in an accident but my vehicle was badly damaged?

 

  • Drivers, passengers and pedestrians who were injured in the motor vehicle accident caused by someone’s negligence can claim damages from the Road Accident Fund in terms of the Road Accident Fund Act.
  • The Road Accident Fund does not cover damage to vehicles or things inside the vehicle, such as watch or clothes.
  • If a person has suffered damage to their property (to the vehicle or things inside the vehicle) as a result of a motor vehicle accident, must claim from the driver whose negligence caused the accident or from the driver’s private insurance (or from the driver’s insurance if he was insured – research has shown that only about half the vehicles on our roads are insured).
  • Insurance that you buy from a private insurance company is therefore not automatic. You choose whether you want to pay for extra insurance, for example, fire and theft insurance, balance of third party and comprehensive insurance.
  • You can then claim from your own insurance company for your own losses, if somebody else caused the accident. If you cause an accident and have insurance you can ask the insurance company  to someone else for the loss that you have caused to them.

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10. What procedure should I follow after a motor vehicle accident?

  

  • Switch off the car's ignition to ensure that a spark does not cause a fire.
  • If you are in shock, call someone to assist immediately.
  • Switch on emergency lights or place red danger triangles in the road to warn other motorists of the accident.

Do not leave the scene. Stay calm. Do not argue, accuse anyone or admit to any guilt.

  • It's always better to wait for police to arrive on the scene.
  • If the vehicle can still be driven, move it to the shoulder of the road away from oncoming traffic. To leave the car in the middle of the road or at a busy intersection, could cause further accidents and injuries.
  • Call for medical assistance. If there are any injuries, do not move the injured parties unless you have medical knowledge or training to deal with such cases.
  • After the accident, exchange the following information with the other party: name, address, telephone number, insurance company and policy number. If the driver is not insured, confirm the relationship and write the name and address down of all occupants.
  • Write a description of all the vehicles involved in the accident, including the year, make, model and colour - as well as the exact location of the accident and how it happened.
  • Document the accident and the damage to all the vehicles. If there are witnesses, trying to get their contact details; they might be helpful if the other driver disagrees with your version of the accident.
  • Make sure that the police take a full statement.
  • Report the accident. Although the police do not come out to an accident scene if there are no injuries, the drivers should report the accident at a police station. Such a report is neccessary for insurance claims.
  • Be informed about your insurance cover. The whole insurance process will be easier if you are familiar with the contents of your specific insurance. Check your policy regularly for specific details.
  • Keep a copy of your insurance in the vehicle.
  • Keep contact numbers for your insurance broker in your vehicle.
  • Make sure you have the number of the 24 hour support branch stored on your phone.
  • Make sure that you know which police station's members were at the scene - Who the officer was and record his badge number. If possible also obtain the case number.

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11.What if I am partly to blame for the accident?

 

You will only get money from the fund if you did not cause the accident. If you and the other driver were equally to blame for the accident, you will only be paid half your damages. In the event that both drivers were negligent the RAF will take into account the Apportionment of Damages Act (No34 of 1956).

This Act allows the RAF to split (apportion) the compensation so that it is a just and equitable demand that is awarded to the injured party.

If the accident was caused solely by your negligence you will not be entitled to claim from the RAF.

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14. Can one claim damages for emotional shock in South African Law?

 

  • Originally, our Courts followed the English law and a claimant could not recover damages for emotional shock unless he also suffered personal injury.
  • In 1904 and 1914 it was held that a claimant had to have been in personal danger or feared for his own safety otherwise it was ‘too remote’. The claimant had to have been in a danger zone.
  • In 1973 a serious development occurred in Bester v Commercial Union. The requirement of personal danger was replaced with the yardstick of reasonable forseeability of harm. The Court recognized the brain as much part of the body/physical organism as an arm or leg and ruled that emotional shock would qualify as a personal injury.
  • In 1997 in Barnard v Santam, the court applied the test of reasonable forseeability but saw a need to limit such claims for policy considerations – it would place too burdensome an onus on the driver of a motor vehicle and affect traffic.
  • In 1999 the Supreme Court of Appeal however, overturned the decision and allowed Barnard’s claim and stated that the fears of opening the floodgates and limitless liability were exaggerated and extended liability to ‘hearsay victims’
  • In 2000 in Sauls v RAF it was established that secondary victims could claim even where primary victims objectively sustained minor injuries. Further, emotional shock claims were extended to secondary victims even though there was not a blood relationship or a spouse and liability could follow. The Court held that it should apply the flexible notions of legal policy, reasonableness, justice and fairness to come to a fair result. To date, no South African Court has awarded emotional shock damages to a completely unrelated innocent bystander. There has been an increase in emotional shock judgements, although the position has been tempered by our Courts awarding a very conservative general damages awards for emotional shock. 

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15. How are personal injury claims quantified and is allowance made for social factors in the subjective value of money?

 

  • The quantum of personal injury claims must be thoroughly investigated where after a proper quantification can be done. The factual evidence and information which the attorney gathers is passed on to the experts and this lays the foundation for the quantification of the claim.
  • The basic principle underlying an award of damages in the Aquilian action is that the compensation must be so assessed as to place the plaintiff, as far as possible, in the position he would have occupied had the wrongful act causing him injury has not been committed. This is done by comparing the plaintiffs ‘property’ with its projected state had the wrong not been committed.
  • Awards must take into account the state of the economic development of the country and awards in comparable cases can be used to provide a general yardstick to assist the court in arriving at an award.

No allowance should be made for variations in the subjective value of money to the person injured by means of social or racial factors. In Radebe v Hough 1949(1)SA 380(A) the Court held:

‘…a millionaire is not entitled to a higher award of damages for pain and suffering because the money means very little to him, and conversely a pauper is not to be prejudiced by the fact that money means a great deal to him. What would be the position if the financial status of the millionaire or if the pauper changed in the interval between the suffering of the pain and the award of damages?’

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16.What constitutes past medical expenses?

 

  • A Plaintiff is entitled to recover past medical and hospital expenses which have been reasonably incurred and are attributable to the bodily injuries sustained in the incident.
  • Whether expenses were reasonably incurred is largely a question of fact upon which all the circumstances of the case. A Plaintiff would generally be entitled to recover as damages medical expenses incurred on the advice of medical experts, even though it should later transpire that this advice was mistaken, particularly when the medical diagnosis was a difficult and hazardous one.
  • The treatment at a hospital or clinic often gives rise to the ‘joinder’ of the clinic and/or the doctor/specialist and/or the nurses as third parties or defendants to an action due to their negligent actions.
  • The Plaintiff is generally entitled to expenses ancillary to the medical treatment received, for instance the cost of transport to visit a doctor, the cost of artificial limbs and related accessories, and the cost of paramedical help. Medico-legal reports do not form part of past medical expenses, but are part of the Plaintiff’s legal cost to prepare the case.

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17. What constitutes future medical expenses?

 

  • The determination of future medical expenses involves the use of (mostly) medical experts who express opinions in regard to the nature, duration and costs of future medical treatment.
  • It is necessary for the Plaintiff to establish that as a matter of probability these expenses will need to be incurred and to show what the amount of the expenses is likely to be.
  • Not all forseen future medical expenses materialize. Legal experts deal with this by applying a contingency deduction to future medical expenses.
  • Life expectancy is obviously very important in regard to the calculation of future medical and ancillary expenses – being terminally ill for example will have a major impact on the Plaintiff’s claim for future medical expenses.
  • Future medical and ancillary expenses can only be determined accurately with the help of expert witnesses. One has to treat the opinions of experts and circumspection and an experienced personal injury lawyer will help spot the ‘hired gun’ approach applied by certain experts ie the tendency to express and motivate an opinion which the expert believes his attorney and the client would like to hear. 

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18.What constitutes past loss of earnings?

 

  • A Plaintiff is entitled to recover his past loss of earnings from the wrongdoer.
  • You require documentary evidence regarding your employment situation such as a contract of employment or letter of appointment in the event of the Plaintiff having been employed in the formal employment sector.
  • Other documentary evidence will be income tax returns and assessments, audited balance sheets and books of account. Any basis for calculation ought be done on income net of tax, the reason being that any damages award to the plaintiff is not taxable.
  • Regarding people who are employed in the informal work sector, such as taxi drivers, labourers, hawkers, gardeners, domestic servants, piece workers and the like who lack documentary evidence, the lawyer can lead factual evidence as to what persons in similar occupations in the same area earn. 

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19. What constitutes future loss of earnings?

 

  • The quantification of a Plaintiff’s future loss of earnings and/or future loss of earnings capacity requires thorough investigation, solid evidence (medical and factual) and good judgement to arrive at a fair result.
  • Future loss of earnings can be straightforward calculation, which usually applies when an expert states that a plaintiff will be of work for say a period of 6 months when he undergoes an operation such as a knee replacement.
  • A plaintiff must not only prove that he has a loss of earning capacity but also that the loss of earning capacity will translate into a patrimonial loss ie actual loss of earnings.
  • There must be evidence before the court that confirms on a factual basis that the discomfort, pain and suffering translates into a loss of income.

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20. How are claims for loss of support calculated?

 

  • The calculation of damages for loss of support relates to the patrimonial loss suffered by the dependants of the deceased person. Every dependant of the deceased has a claim in his or her right.
  • The general approach of the court has been to use the annuity basis of calculation as a starting point and to adjust the figures thus obtained in accordance with the general equities of the case having regard to various factors, as for example the benefits accruing to the Plaintiff by reason of the deceased’s death and, where the Plaintiff is the deceased’s widow, her capacity to earn an income of her own and her prospects of re-marriage.

The first step in this method of assessment is to determine the facts relevant to the annuity calculation. These are:

  • The period for which the Plaintiff would have enjoyed the maintenance and support of which the Plaintiff has been deprived by the death of the deceased;
  • What the deceased’s net annual income over that period would have been;
  • How much of the deceased’s net annual income would have been devoted to the maintenance and support of the Plaintiff.
  • The total amount of the maintenance and support that the Plaintiff has lost is then reduced to its present value or alternatively what it would cost to purchase an annuity which will give the plaintiff annual payments equivalent to the annual maintenance lost over the period during which the plaintiff would have enjoyed the support of the deceased. 

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21. What is the expected period of support?

 

  • In the first place the right of a spouse to be supported ceases only on the death of either spouse. The calculation for the loss of spousal support would be the period over which the deceased could normally have been expected to have continued to earn an income, and the period after retirement during which the remaining spouse could have expected to have been supported out of any post-retirement income.
  • The date of retirement would normally be determined by the employer of the deceased or if the deceased was self-employed, of what would have been a suitable retirement age.
  • Children are entitled to compensation only in respect of the period during which they would normally have been supported by the deceased, or have become self supporting, depending on the circumstances.These periods naturally tends to depend upon factors such as the social status and financial standing of the deceased, and any relevant evidence of the deceased’s intention during his lifetime with regard to the maintenance and support of any particular child.

 

21. What are ‘collateral benefits’?

 

  • The concept of collateral benefits is to be found in the assessment of damages in respect of claims arising out of personal injury or death. The benefits that someone receives as a result of the loss that the person may have received are excluded from the computation of the damages.
  • Insurance and Pension Benefits – generally pension benefits payable in terms of the contract of employment that the injured person had are deducted when assessing the amount of compensation he is entitled to. Similarly insurance benefits provided by an employer in terms of a contract of employment are also deductible in full.
  • Ex-gratia benefits – any benefits that are received gratuitously by an injured person or the family of a deceived are not subject to any deduction when assessing the damages claimable.
  • Charity – a third party may provide money or other tangible benefit to a claimant as an act of charity. The benefit under these circumstances is not subject to any deduction from the damages to be awarded.

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23. How do I prepare to consult with my attorney?

 

It will speed things up if you have certain details before seeing your attorney. These are:

  • your Identity Document
  • the registration number of the cat that caused the accident
  • the police case number
  • Details of the driver or the owner of the car.
  • details of any witnesses of the accident
  • a hospital patient number.

If the claim is by a dependant of a breadwinner who was killed in accident, the following documents will also be needed:

  • ID of deceased
  • death certificate of deceased
  • copy of inquiry, if available
  • copy of latest payslip
  • funeral expenses

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24. How long will it take to complete a claim against the RAF?

 

  • An attorney can lodge a summons after 120 days since the claim was lodged with the RAF. This gives the person handling the claim 120 days to finalise all the investigations.
  • When your attorney has served a summons, the person handling your claim may ask for an extension of time which will be used to see if the claim can be settled without going to court. The time that it takes to complete a claim often depends on the complexity of the claim and whether all the necessary information is available.
  • If the RAF decides to pay out the claim, they will make an offer to your attorney and if the offer is not accepted the matter will be negotiated or proceed to trial, which is a very time consuming process. Should you agree to the amount being offered a discharge form will be used to say how much is to be paid.
  • You will have to sign the discharge form and only once the RAF has received this will they make payment.
  • If the matter proceeds to trial you may have to wait between 12 and 24 months to obtain a trial date in some of the High Courts. 

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25. What are some of the documents my attorney requires for a claim against the RAF?

 

If the attorney agrees to take your case, then you can help the attorney getting some of the necessary documents – where available and applicable.

  • A medical report, or if a person was killed in an accident you must get an inquest docket   (this is a record of a court enquiry into someone’s death)
  • A charge sheet from the police
  • All accounts receipts and vouchers to prove medical expenses and hospital expenses.
  • Letter from the doctor
  • A rough sketch (drawing) of the scene of the accident.
  • The name of the police station where the accident was reported, the police case number and police report.
  • A letter from your employer to state how much money you lost through unpaid wages, known as loss of income certificate.
  • A Power of Attorney from you giving permission to the attorney to make the claim on your behalf.
  • Written consent to the hospital, giving permission to your attorney and the Fund to look into your medical records.
  • Affidavits from witnesses, if there are any.  

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26. What pages must be contained in the hospital or clinical records?

 

As a general rule of thumb this must contain the following pages:

  • Summary, admission and discharge sheet
  • History sheet
  • Physical examination sheet
  • Doctor’s orders sheet
  • Graphic charts
  • The nurses bedside records
  • Progress form reports
  • The consulting doctor’s notes
  • The authority to operate if any
  • The anaesthetists’ record
  • Laboratory and special test reports
  • A pre-operative check list

 

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