What can I claim for in a personal injury case?

In a South African personal injury case you can claim for five broad things: the medical expenses you have already paid, the medical expenses you will need in future, the income you have already lost, the income or earning capacity you will lose in future, and general damages for pain, suffering, disfigurement and loss of amenities of life. If someone was killed, their dependants can claim loss of support and the person who paid for the funeral can claim those costs. You generally have three years from the date you knew of the harm and who caused it to bring the claim, and only six months to give written notice if the wrongdoer is an organ of state.

That list applies whether you were hurt in a car accident, bitten by a dog, injured in a shop or hurt by a negligent doctor. What changes between those cases is who you claim from, what you have to prove about their fault, and which special rules apply. For a road accident the Road Accident Fund Act 56 of 1996 puts the Fund in the place of the driver at fault and adds its own limits. For everything else you claim under the common law of delict, which is the branch of law that makes a person pay for harm caused by their wrongful and negligent conduct.

The heads of damage explained

Lawyers call each category a "head of damage", and each is proved separately.

Past medical expenses. Everything you have paid, or your medical aid has paid on your behalf, for treatment caused by the injury: ambulance, casualty, surgery, medication, physiotherapy, devices such as crutches, and travel to appointments. Keep every receipt and statement.

Future medical expenses. The cost of treatment you will need later, such as removal of a plate, further surgery, ongoing therapy or a prosthesis. This is proved through medical reports and, where the amounts are large, an actuary who converts future costs into a present value. In an RAF claim this head is usually met by an undertaking rather than cash.

Past loss of earnings. The pay you lost while off work, proved with payslips and an employer's letter, or with bank statements and tax records if you are self-employed. Unpaid leave counts.

Future loss of earnings or earning capacity. If the injury limits what you can do for a living, you claim the difference between what you would probably have earned had you not been hurt and what you will probably earn now. This is often the largest head in a serious claim. It relies on an industrial psychologist and an actuary, and courts apply "contingencies", which are percentage deductions for the ordinary uncertainties of life.

General damages. Money for the things that cannot be measured with a receipt: pain, suffering, disfigurement, loss of enjoyment of life, shortened life expectancy. Courts assess it by comparing earlier awards for similar injuries. It is also where an RAF claim differs from a common-law claim: the Fund pays general damages only for an injury assessed as serious under the prescribed assessment.

Loss of support. If a breadwinner is killed, a spouse, child, or other dependant who had a legal right to be supported can claim the support they have lost, calculated over the period the deceased would probably have supported them.

Funeral expenses. Reasonable funeral costs, claimed by whoever actually paid them.

You cannot claim for damage to property under these heads. A written-off car or a broken phone is a separate claim for patrimonial loss, and the RAF does not pay it at all.

How it works step by step

1. Identify who is liable. The driver at fault (through the RAF), the dog owner, the shop, the hospital, the municipality.
2. Establish fault. Outside the RAF you must prove negligence, meaning the other side failed to take the care a reasonable person would have taken. The RAF requires negligence by another driver too, but it replaces the driver as the defendant.
3. Prove your loss under each head. This is the paperwork stage and it never stops until settlement.
4. Send a letter of demand. Many claims settle at this stage, usually through the wrongdoer's liability insurer.
5. Issue summons if needed. Before the three-year prescription period runs out.
6. Settle or go to trial. Most claims settle. Do not settle before your doctors know where you will end up.

A worked example

Musa is a 41 year old delivery driver. While collecting stock from a wholesaler, a badly secured pallet falls from racking and crushes his left foot. He has two operations, is off work for five months, and is left with a permanent limp that stops him doing long delivery shifts.

The figures are illustrative only, made up to show how heads of damage are put together. They are not a prediction of what any claim would pay.

• Past medical expenses: hospital, surgeon, anaesthetist, physiotherapy and medication, R94 000, of which his medical aid paid R71 000. Both parts are claimed.
• Future medical expenses: his surgeon says he will need the pins removed and a course of therapy afterwards. An estimate of R32 000 is supported by a medical report.
• Past loss of earnings: five months at his normal pay of R14 500 a month, confirmed by his employer, R72 500.
• Future loss of earning capacity: an industrial psychologist reports that Musa can no longer do the longer routes that attracted overtime, and that his prospects of promotion to a supervisory role have shrunk. An actuary turns that into a present value, before contingencies. It is the head the wholesaler's insurer will fight hardest.
• General damages: a figure for the pain of two operations, the permanent limp and the sports he can no longer play, assessed by comparison with earlier awards for similar injuries.

Because Musa is claiming against a business rather than the RAF, there is no serious injury threshold for his general damages, but he has to prove the wholesaler was negligent in how it stacked and secured the pallet. If Musa had been partly to blame, say by walking into a clearly marked exclusion zone, the Apportionment of Damages Act 34 of 1956 would reduce each head in proportion to his share of the fault.

What to do this week

• See a doctor if you have not, and ask for a written record of your injuries and their cause.
• Photograph your injuries now and every week while they heal.
• Write down what happened, where, when and who saw it, while it is fresh.
• Start one folder for every receipt, sick note, prescription, payslip and letter.
• Ask your employer for a letter confirming your dates off work and your pay.
• Work out your deadline. Use our prescription checker if you are unsure.

Evidence to gather

• medical records, discharge summaries and reports from every treating practitioner
• receipts and medical aid statements for all expenses
• payslips, an employer's letter, or tax returns and bank statements if self-employed
• photographs of the scene, the hazard and your injuries
• witness names, numbers and short signed statements
• any incident report, police report or CCTV footage the other side holds
• for a death, the death certificate, proof of dependency and the funeral invoice

Realistic timeline

• Treatment and documentation: weeks to months, because the claim cannot be valued until the long-term position is known.
• Letter of demand and negotiation: one to six months, longer if the insurer disputes fault.
• Expert reports for a serious claim: many months. Specialists have waiting lists.
• Summons to trial: often two to three years in the High Court. Most claims settle before the trial date.
• Payment: weeks after settlement for a private defendant. Longer for the RAF, as How long does a RAF claim take? explains.

Common mistakes and what they cost

• Not seeing a doctor promptly. A gap between the injury and the first medical record invites the argument that something else caused the harm.
• Throwing away receipts. Every unproved rand is a rand you cannot claim.
• Guessing your earnings. Loss of earnings is proved with documents. Cash income without records is very hard to recover.
• Settling early. Injuries that seem minor can turn out to be permanent. Once you sign, the claim is closed.
• Missing the six-month notice for an organ of state. A claim against a municipality, a provincial hospital or the police needs written notice within six months of the date the claim arose, or you will have to apply for condonation, which is not guaranteed.
• Posting about your recovery on social media. Photographs of you hiking will be used against you.

Your rights and the other side's rights

You have the right to: claim under every head you can prove; recover a costs contribution if you succeed; be examined by your own experts; and refuse a settlement offer.

The other side has the right to: deny fault and make you prove it; have you examined by its own experts; argue that you were partly to blame; argue that some expenses were unreasonable or unrelated; and rely on prescription if you are late.

If you cannot afford an attorney

For a road accident, lodging with the RAF directly is free and you do not need an attorney to do it. See How to claim from the Road Accident Fund.

If your injury is minor and the amount you can prove is modest, and you are claiming as a natural person, the Small Claims Court hears claims up to its monetary limit without attorneys and at very low cost. Check whether your claim fits with the small claims court calculator and see court fees for what a summons costs elsewhere.

For a serious injury, most people use an attorney under a contingency fee agreement governed by the Contingency Fees Act 66 of 1997. The agreement must be in writing, and the success fee is capped at double the normal fee or 25% of the award, whichever is lower, excluding disbursements such as expert reports. Read How does no win no fee work in South Africa? before you sign. Legal Aid South Africa can be reached on 0800 110 110 and applies a means test, and What does claims and compensation cost? explains what to expect.

Frequently asked questions

People often ask whether they can claim for emotional trauma with no physical injury. You can, but a recognisable psychiatric injury diagnosed by a professional is required, not ordinary distress. People also ask what a claim is "worth". Nobody can say before the medical position is settled and the evidence is in. For road accidents, our RAF claim range calculator shows illustrative bands only.