13 Aug 2021
How to claim for damages
Losing a family member due to misconduct or negligence is painful. We discuss how you can seek justice on behalf of your loved one for a wrongful death action. A wrongful death lawsuit can be filed when your loved one has died as a result of someone else’s negligence.
In order to win a wrongful death lawsuit in South Africa, you not only have to prove negligence, but also that there has been a loss of financial support to the surviving family members or that they have suffered psychological or emotional damage.
However, it is not always easy to prove these losses. Medical professionals and hospital groups are vulnerable to wrongful death claims resulting in their insurers and state health departments becoming responsible for actioning the outcomes.
Who can file a wrongful death lawsuit?
A person who represents the deceased estate can file a wrongful death lawsuit. Whoever claims must have a level of financial dependence on the deceased.
The scenarios when you can claim:
- Intentional death – this would be a separate matter from litigation.
- Medical malpractice – where a doctor acts with negligence resulting in a patient’s death.
- Automobile accident – negligent driving leads to what was a preventable death.
One needs to support these claims by proving that in each scenario, there has been psychological or emotional and financial damage caused by the situation to the family.
Financial damage – loss of support
Not just anyone can claim for loss of support, only the deceased’s spouse, brother, sister, child, parents are able to, based on the fulfilment of a criteria.
With evidence, a relationship akin to a marriage has been recognised and falls into one of the categories of people who would have a valid claim. A spouse can claim the value of what they would ordinarily receive from his/her partner. While a child can only claim up until they are self-supporting, there is no age stipulated if a child is studying. This is because if a child is studying, the parent would continue to support them financially.
Psychological or emotional damage
As grief is considered a passing and a natural state, it is not recognised as an injury. Expert evidence needs to be given to support a claim for psychological or emotional damage, which requires an assessment by a psychologist.
What damages can be awarded?
The aim of a wrongful death lawsuit is to seek financial compensation for loss of earnings, loss of support, loss as a result of medical expenses and loss as a result of funeral costs. It is not possible under South African law to claim for punitive damages, which are damages that would punish the wrong-doer or attempt to reform the wrong-doer’s behaviour, when claiming for wrongful death damages.
Proving intent or negligence
One of the most important elements which determine the outcome of a case of wrongful death is the ability to prove intent or negligence. Without it, a case cannot result in a verdict that falls in favour of the plaintiff.
The process – how to claim?
A claim against the state would entail a different process to suing an individual or a company. For example, to sue the state, you would need to send a written notification of intent to the organ of the state in question within six months of the incident occurring, e.g. Minister of the Police for the South African Police Service (SAPS). Thirty days after sending, you can initiate legal proceedings. You can initiate a claim up to three years after becoming aware of the facts. Your Legal&Tax lawyer can be approached to discuss each unique situation.
Can you legally claim?
If you or a loved one signed an indemnity or disclaimer, you have very likely forfeited your right to hold the hospital and the doctors liable for wrongful death.
With Legal&Tax you’re not alone
Article sourced from Legal&Tax.
See also:(This article is provided for informational purposes only and not for the purpose of providing legal advice. For more information on the topic, please contact the author/s or the relevant provider.)