Personal Injury Terms: Making Sense of Legal Language

Below we offer definitions of commonly used personal injury terms in South Africa. Knowing some of these terms may make it easier to understand legal documentation and discussions surrounding personal injury claims.

Nothing is more important, however, than having clear, straightforward one-on-one legal advice and representation by an experienced personal injury attorney.

DSC Attorneys offers expert legal services to clients, whether in English, Afrikaans and Xhosa, as well as several of the other official languages. To ensure clear communication at all times, we also have full-time translators on staff.

Apportionment of negligence      

A legal principle that applies when both parties involved in an accident or incident are assigned blame. In this scenario, the court determines the parties’ respective degrees of negligence by assessing the percentage of fault for each party, and reduces the compensation accordingly.

Breach of duty      

The failure by someone to meet the accepted level of care that any other reasonable person would provide in similar circumstances. A medical professional who does not follow treatment protocols, and the lapse results in harm or injury to a patient, may be considered in breach of duty.

Burden of proof      

The obligation of an injured party to provide evidence to support a claim. The evidence must be convincing enough to persuade the court to rule in his or her favour.

Causation      

The legal link between an act or omission by one person, and the injury or harm suffered by another. In personal injury claims, it must be established that the defendant’s actions, or inactions, were the cause of the injury. In other words, there must be causation between the two events.

Contingency fee      

A form of legal fee that is only levied when a lawyer wins the case on the client’s behalf. In South Africa, the leading personal injury law firms typically work on a no-win, no-fee basis.

Curator ad litem

A Latin term for a lawyer, parent or guardian who is appointed by the court to represent a child, or an adult who is considered incapable of representing him or herself.

Damages       

The sum of money awarded to a person for the loss or injury caused by another. A damages award can be agreed upon in a negotiated settlement between the two parties, or as ordered by the court.

Defendant        

The person, or entity, who has been accused of, and is deemed legally responsible for, causing harm to an injured party. 

Disclosure      

The legal requirement for the parties to share reports, statements, medical records and other documents to support, or adversely affect, a claim.

Discovery       

A formal stage in a personal injury lawsuit where the parties gather evidence and share information about the case. The aim of discovery is to make both parties aware of the evidence that may be presented in court.

Duty of care     

A legal obligation, that everyone has, to avoid causing harm to another. Motorists who adhere to the rules of the road, follow the speed limit and practice safe driving are fulfilling their duty of care to other road users.

Force majeure      

A French term that refers to an unforeseeable event that is beyond the control of the parties involved in an accident. Typical force majeure events include natural disasters and infrastructure failures like vehicle breakdowns, malfunctioning traffic lights and damaged roads.

Heads of damage      

The types of damages that are awarded a monetary value and, together, form the total compensation claimed for personal injury. They typically include general damages, past and future medical expenses and past and future loss of earnings.

Litigation       

The legal process of suing a party for damages. When a favourable settlement is not reached with the defendant, the court is asked to adjudicate the case, and award fair compensation.

Medical negligence      

Occurs when a hospital or healthcare provider undertakes a legal duty in respect of the patient but breaches that duty. When the breach of duty is the direct cause of harm to the patient, it is considered medical negligence.

Party and party costs      

The legal costs incurred by one party that the court may order to be paid by the other party. These costs are subject to court tariffs and vary from one case to the next. Depending on what the court decides, costs may be borne by either the plaintiff or the defendant.

Personal injury      

A physical, mental or emotional injury to someone caused by the negligent act or omission of another.

Plaintiff       

In personal injury law, the plaintiff is the person who suffered the harm. He or she initiates the claim against the defendant – the party who is alleged to have caused the injury.

Prescription       

A defined time limit in which to institute a personal injury claim after an accident or harmful event has occurred. Once the prescription period has elapsed, it is extinguished in law and the claim cannot be pursued. 

Proximate cause      

A key component of causation that determines whether a person’s actions or inactions are sufficiently linked to an injury to be considered the cause. An example of proximate cause is when someone fails to stop at a traffic light, hits an oncoming vehicle and causes injuries to the occupants of the vehicle.

Settlement        

A voluntary agreement between the parties to settle a personal injury claim.

Statute of limitations       

A law that sets the maximum time in which a party has to initiate legal proceedings after an event has occurred. The term statute of limitations is more commonly used in overseas jurisdictions, and in South Africa is known as the prescription period. In South Africa, the prescription period for personal injury claims is generally three years from the date of the injury (this changes depending on a number of factors, such as the age of the injured party).

Strict liability     

A legal principle that holds a person responsible for injuries, regardless of whether he or she intended to cause harm, or was negligent in doing so. In the case of strict liability, the person who suffered the injury does not have to prove negligence or fault. A typical example of strict liability is when the owner of a dog is held legally responsible for the loss or damages caused by the dog.

Tort       

A legal term for the act or omission by one person that causes the harm to another. A tort can be accidental, intentional or negligent, and holds the person who commits the act legally liable.