The Claims Process
Where do you start?
The below summary is a very short description of what you could realistically expect and is by no means a one size fits all solution for each client. Each matter is different and various factors would influence the decisions, duration, and outcome.
Whether you were injured due to negligence, substandard medical care or in a motor vehicle accident, the first step is to contact an attorney.
We’ll be able to explain your options and take you through the process step by step based on the information you provide.
Initially, we will ask you to provide a brief summary of who, what, where and when.
Following that, we’ll contact you to arrange a free of charge consultation or liaise with you via email to get any additional information whichever is more convenient.
The Claims Process
Thereafter we start the process by obtaining the necessary information from any persons or institutions involved, including medical, hospital, accident and employment records. This can, unfortunately, be a time-consuming process as the majority of departments take months to provide records.
We then research and investigate the care and where there are technical experts refer the records to an objective expert to provide us with a medico-legal opinion. Based on the opinion we can advise whether the merits are strong and whether litigation should be pursued.
Merits (Liability) Phase
In personal injury matters, litigation (or legally required steps) the process of determining the liability of the allegedly responsible party commences. In RAF matters it is a requirement that specific forms be completed and submitted to the RAF for consideration within certain timeframes.
The next step consists of suing the liable party (or institution) by requesting a Sheriff to deliver (serve)a formal legal Summons which includes allegations and demands so that the other party knows what claims are being made. The Defendant in such an instance will likely refer the document to his/her legal advisors and the rest of the communication will commence between the legal teams. During this time various documents are exchanged, meetings are held and prepared to prove your case is done with the view of obtaining a trial date from the court. If all preparation is done and the court determines that the matter may be heard, a trial will commence. It is possible that matters may settle, but this is never guaranteed and often happens on the day of trial or even mid-trial.
Should the court find the Defendant responsible for causing the damage, the Liability phase of the matter will be finalized.
Quantum (Determination Of Compensation) Phase
The amount of compensation that is awarded to an injured person differs in each case. The basic factors that a court looks at are the following:
- Past and future medical and related expenses;
- Past and future loss of income or ability to earn an income; and
- General damages for unquantifiable damage such as permanent pain or disability.
The extent of damage has to be based on evidence provided to the court and includes medico-legal reports in which specialists set out their opinions and estimation of the loss for which the claimant should be compensated. In some cases, this includes involving and being assessed by as many as 20 experts. The Defendant has an opportunity to have their own assessments performed and obtain opinions to dispute a claim. Ultimately an actuary is also appointed to calculate exactly what the amount should be given the uncertainties of the future and factoring in inflation, risks, etc. As with the Liability phase, the evidence can be presented to a judge and a finding made.
Once this is done and confirmed in a court order, if compensation is awarded, the Defendant has a certain time within which to pay. In cases involving the state or RAF, this may take many months. Usually, where children or severely injured claimants are involved, a Trust is created to ensure that any funds awarded are suitably protected.
Taxation (Costs Of Litigation)
Luckily the term Taxation does not actually involve Tax or SARS. In most instances, a court will direct that the party who was not successful, has to contribute to the other party’s legal costs. To this end, an attorney specializing in legal costs, called a Cost Consultant, is appointed to ensure that a bill adequately reflects the work done and will present it to a Taxing Master at court. The Defendant (unsuccessful party) will similarly have an opportunity to dispute any items on the bill. The Taxing Master can then agree on what amount should be contributed to legal fees incurred by the successful party.
Once the above litigation process is completed, and compensation paid out and received, we would be able to provide a reconciliation statement reflecting exactly what monies were received, what expenses were incurred or recovered and what ultimately can be paid over to the client. The process obviously can take many years to complete considering all the investigation and preparation that is involved, but in each case, the outcome is life-changing for those who have suffered permanent disability or harm due to negligence.