THE CLAIMS PROCESS
Once we have consulted with you, assessed the claim, and agreed to take it on, we start to prepare. There are differences in claims, depending on whether they are due to Motor Vehicle Accidents, Train Accidents, Police Assaults/Shootings, Medical Negligence, Dog bite cases or Slip & Trip matters. However, in certain ways, all claims are the same.
Our law of Delict, as it relates to personal injury or death claims, is based on the Aquilian action, which has its roots in Roman Dutch law. Broadly speaking, however, there are two major issues to address in all claims – first the merits, and then the quantum.
Lastly – once you are successful – the loser must usually make a contribution towards your legal costs.
The Merits: Have you got a Claim?
In simple terms, if there is no merit to the claim, then there will be no money either. This is because the legal basis of any claim (which must be proved on its own set of facts) is “fault”. And it comprises the following elements; something happened that shouldn’t have, it happened negligently or intentionally and was wrongful, it caused the injury/death and resulting losses or expenses, and the wrongdoer is liable.
Establishing what the facts are and establishing exactly what the law is, can be a complex and expensive process. It often entails investigations, incident reconstruction, research & litigation (which may be protracted if there is an appeal). Dealing with all of this is what we do, and it’s the benefit you enjoy, when using a specialist firm of Attorney’s to handle your claim.
The Quantum: How much will you get?
Although there is an exception, our law of damages is generally based on the idea that the wrongdoer should compensate the victim for their loss (rather than be punished by paying beyond this). The law tries – to the extent that this is possible with money – to put the victim; whether personally injured (or as a dependent of a deceased breadwinner) in the same position that they were before the incident. Hence, following the death of a breadwinner, dependents may claim for Past & Future Loss of Support. In addition (and this is usually done by the surviving spouse) Funeral Expenses may be claimed.
In personal injury matters, damages are made up as follows: There are general damages for pain, shock, suffering, loss of amenities and disfigurement – although you should know that there is a test applied & hurdle to clear in order to qualify for general damages in Motor Vehicle Accident matters. In addition, you may claim for past medical expenses and lost income. Lastly, thanks to the “once-for-all” rule, future medical expenses and future income losses are also claimed at this time. In any event, all damages, losses and expenses claimed must be proved – and this can be difficult in practice. Indeed, this is the art, science (and sometimes) legal challenge of our work. This is what it takes to properly quantify (and obtain) the quantum i.e. money of a claim: The process normally involves obtaining various specialist Medico-Legal reports. We have access to specialists in all medical disciplines. However, because defendants frequently get their own reports, with different opinions, a dispute may arise. So as not to run up expenses or waste court time, however, the rules of court encourage the parties to settle matters, or at least limit the issues in dispute.
Hence, there is usually a process where settlement proposals are formulated and negotiations conducted in an attempt (whether completely or partially) to settle the claim. If this fails (on any aspect) then there is the prospect of going to Court. And this, amongst other things, involves instructing a specialist Advocate, consulting with the client, experts and if necessary, other witnesses. Finally the “moment of truth” arrives i.e. going to Trial. This has its own dimensions (which we won’t explore here) suffice it to say that things can go wrong. And even if they don’t, then after all that (although admittedly not frequently) there is always the possibility of an appeal thereafter… This is what it takes, and so it makes sense to have a specialist Attorney with your best interests at heart handling your matter properly.
Recovering (some) Legal Costs …from the other Party
One last thing to remember; is that the law provides that the loser pays (or must at least contribute towards) the winner’s legal costs. These are called party & party costs, and the tariff depends on the court your matter is in. Recovering costs is a separate process that follows the main action i.e. it’s done after the claim itself is finished. It involves drawing up an itemised bill of costs (usually by a specialist cost consultant). The bill is then sent, together with supporting vouchers for any disbursements (i.e. monies spent on the claim) to the other party.
If the parties can settle, all good and well. However, if not, the bill will go to court to be taxed (note this is nothing to do with any taxes you pay the government). All disputed items will be argued in front of a taxing master, who will then make rulings. Finally, the bill will be taxed and allocated i.e. finalised. The other party will then have to pay this amount. Cost recovery rounds out the claim process, and it normally takes a few months to get the money.
Needless to say, recovering costs from the other party requires specialist knowledge, and is best left your lawyer (and cost consultant) to deal with on your behalf.