- That you suffered harm (either physical / psychological harm or financial loss);
- That such harm occurred as a result of the negligent conduct / omission of another person.
This conduct / omission will be measured against the “reasonable man” – and any conduct which falls short of what the reasonable man, in the same circumstances, and level of experience or expertise as the defendant, would do to avoid foreseeable harm or risk to the claimant, will be negligent.
In other words, the courts will look at whether a person failed to foresee the possibility of harm occurring, in circumstances where another reasonable person would have foreseen the possibility of harm occurring and would have taken reasonable steps to avoid or prevent such harm from occurring.
For example, our courts have held that allowing a train to depart from a station when its doors are not closed is negligent and that the possibility of injuries resulting is foreseeable.
If you are injured as a result of the negligent conduct of another person, then there are several types of compensation that can be claimed. Compensation is divided into different categories called “heads of damages”. These are:
- Special Damages:
- Past Hospital and Medical Expenses
These are expenses which you incurred since the incident for treatment of your injuries. Claimants therefore are urged to keep all their receipts and proof of expenses, as these can be claimed as a reimbursement from the negligent party. It is also a way of establishing the seriousness of the injury and the time taken for recovery.
- Future Hospital and Medical Expenses
These expenses will have to be determined and quantified by medical experts. The specialist will compile a medico-legal report, in which he will set out the nature of the injuries, the effect the injuries have had on your lifestyle and will make recommendations regarding future surgery and your treatment. The specialist will also provide an approximate costing of the expenses for the future medical treatment.
- Past Loss of Earnings
This is the loss or decrease in earnings that you suffered as a result of the negligent conduct of another. You will be required to provide proof of earnings before and after the incident, together with an earnings certificate from your employer.
- Future Loss of Earnings / Diminished Earning Capacity
You will have to be assessed by an Industrial Psychologist who will be able to determine if you are capable of continuing to work, despite your injuries or whether you are no longer able to work. The expert will take into account your promotional prospects or lack thereof, retirement age and skills needed to perform a specific task etc.
Medical legal reports will be compiled in this regard, with the information submitted to the Actuary. The Actuary will then be responsible for compiling an actuarial report, which is a report based on statistical and mathematical calculations, what your projected future loss of earnings will be as a result of you being unable to work or being forced to work for a decreased salary as a result of your injuries.
- Past Hospital and Medical Expenses
- General Damages:
Includes compensation for pain and suffering, loss of amenities of life, shock and trauma, scarring and disfigurement etc. These damages are often referred to as non patrimonial (not financial) loss. No expert can put a value on this damage and quantification is either determined by awards granted by courts in decided judgments or by agreement between the parties.
- Loss of Support / Death of a Breadwinner:
Loss of support can be claimed by the dependents of a breadwinner killed as a result of the incident. Compensation is calculated on the amount of money it would take to place the dependents in the financial position he/she would have been in has the breadwinner not been killed as a result of the incident.
The amount to be claimed is based upon the earnings of the deceased, subject to certain deductions, and the information is submitted to an Actuary for the statistical and mathematical calculations.
Dependents are usually only compensated until the age of 18 or 21 years depending if they are going to undergo tertiary studies, and how long those studies would be, after which the dependent normally becomes self supporting. If the dependent is a surviving spouse, then the compensation is calculated up until the age at which the deceased would have retired.
Never accept any offer or even discuss the matter without consulting with an attorney. We are aware of incidents whereafter railway accidents, people are immediately approached and encouraged to sign settlements and waive their rights to sue in return for a small payment. It is never in your interest to do so.
When we receive an offer from the defendant, this offer is immediately discussed with the claimant, who must then make an informed decision of whether to accept or not. Our specialist litigation attorneys will discuss with the claimant the risks involved in accepting or rejecting the offer, including the possibilities of negotiating for an increased offer or proceeding with the trial.
The claimant must take into consideration variable factors such as the extended time involved in running a trial, as opposed to accepting the offer, the emotional strain of testifying at the trial, the current amounts being awarded as compensation by the courts and other generally accepted risks of litigation.
All of these factors will be discussed and explained extensively to the claimant to ensure that any decision taken will be in the best interest of the claimant.