Who’s to blame for the accident? In simple terms, these are what the legal terms “negligence” and “liability” refer to, as used in personal injury cases. To claim for compensation against a person or institution, someone has to be found responsible for the accident that led to the claimant’s injuries.
You can’t sue yourself, so if you were to blame for your injury, then you don’t have a personal injury case. If you are inebriated, fall into a ditch and hurt yourself, then you would not be able to claim for your damage. If you are driving a car and you, through your own fault, are injured in an accident, once more you will not have a case in personal injury law.
If someone else is responsible for your injury, then they are liable, and you have a case for a personal injury claim. Let’s look more closely at the concept of liability, and why it matters.
Understanding Negligence And Liability
What your personal injury lawyer will be assessing in your case is who is “liable” for your damage. Who caused your damage? It is not always clear cut. If, for example, you are mugged on a train and it leads to a severe injury because you were thrown through an open window by your muggers. In this case, you would not lodge a personal injury claim against the people who injured you.
First, it’s likely you’re not able to identify the muggers to have them arrested. Secondly, if they are caught and charged by the police, it’s doubtful that they’ll have personal injury insurance or any money to pay for your injuries. So, suing the people directly responsible for your injury is therefore not an option.
In this case, there is potentially another party responsible for your injury, PRASA. The railway company that should ensure its passengers are safe while using their services. Your attorney would consider if there were steps that PRASA could have taken that could have prevented your assault and injury. It could be argued that they should have had the windows replaced and more security guards on the trains.
To counter this, the courts may consider the economic burden for PRASA to continuously replace broken windows. It may not be possible or necessary for the service provider to have a security guard in every carriage either.
The court would have to agree with your lawyer that PRASA was negligent by not replacing their windows or having more guards on duty before they would find them liable (to blame) for your injuries.
How Is Negligence Assessed?
Our courts use what we term “the reasonable person test” to assess negligence. What would a “reasonable person” do in this situation? To determine negligence, they would look at the case and ask: would a “reasonable person” have foreseen that that harm could have followed as a result of their actions? If they find that they were negligent, then they would be held liable.
Can Both Parties Be Held Liable?
In personal injury law, there is another factor that courts take into consideration deciding if you can be compensated for your injuries. In many cases, both parties can be to blame for the incident that ensues. To make provision for this the court determines how blameworthiness is distributed, this is known as “apportionment”. Apportionment is regulated in terms of the Apportionment of Damages Act 34 of 1956. Litigation isn’t all or nothing, in circumstances where the parties involved were both to blame in some respects, you will look at shared liability.
Let’s look at a typical situation of a car accident and how liability is assessed. For example, if you are a passenger in a car that is involved in an accident, and as a result you are seriously injured. Since you were not in control of the vehicle you don’t need to prove that you were not liable in a personal injury case.
Where a pedestrian is hit by a car, it’s not as simple. In a case against the Road Accident Fund, the courts would look at the circumstances of the case. The pedestrian could have been crossing the road at a time when is was not safe, and walked into the path of the car, which means they are partially responsible for the accident and their subsequent injury.
The role of a personal injury lawyer is to look at the full circumstances of each case. It includes the police reports, witness statements, medical assessments and more. Using this information, they will reconstruct the accident and come to an apportionment percentage based on this. In other words, were you partially to blame for the accident? Did any negligence on your part lead to your injures? They will put this forward as part of your personal injury claim.
Why Apportionment Matters
The greater the sense of uncertainty in liability, the higher the level of apportionment will be, and the lower your pay-out will be too. Here’s how it works in a personal injury case. First, the courts will look at the merits of the case presented by your lawyer, and if they agree that there is liability on the other party, your claim will be considered valid.
Next, they look at “quantum”, the monetary amount of the claim. The total value placed on a person’s injury in a case may be R10 million, for example. An apportionment will be applied to this. So, in the above example of the pedestrian, liability will be apportioned in the amount determined by the court. If the apportionment was made at 50% to the pedestrian, this would mean that their pay-out would end up being R5 million.
As you can see, issues of negligence and liability can be complex. Remember, a personal injury lawyer is the best person to handle your case if you have been involved in an accident. A specialist is best equipped to handle your personal injury claim because they have the necessary training, experience, and expertise in handling accident claims.
How It All Ties Up Together
Now that you have an understanding of negligence and liability and how they can be apportioned. The last element that you should take note of is that of causation or the so-called causal link between events. Your attorneys will have to prove the link between the accident and the injuries that you have sustained. It is only once they can prove that the accident is the cause of the injuries that negligence and liability can be assesses and if necessary apportioned.
How Our Personal Injury Lawyers Can Help
If you need some legal advice about your personal injury claim, why not contact Adendorff Attorneys Inc.? We specialise in representing injured people who have suffered from serious injury and have been left with medical bills, pain, suffering and loss of income.