Brain Injury

Instituting a brain injury claim in South Africa

Any trauma involving damage to the brain can be extremely dangerous. The brain is a sensitive organ that is the hub of your body. If you suffer any trauma to your brain, you may damage other areas of your body too.

The skull may also be fractured, but this may not always be the case. In any case of head trauma, it is vital to act as if it were a serious injury, even if it appears that there is no obvious damage to the victim.

Brain damage can't always be identified immediately, especially by someone who is not a medical expert.

Especially in the case of brain injury, someone who has experienced a severe head injury may need physical therapy to help in walking again, or perhaps communication has been affected by speech, sight or hearing faculties may be affected too. Perhaps a limb may be affected requiring walking with a stick, or having to learn to use the other arm for day-to-day tasks. It may mean having to relearn how to drive or restoring normal balance and coordination.

All these consequences can cause major difficulties in everyday life and if necessary, you should make a claim from the liable parties.

Have you suffered a brain injury?

In the case that you have suffered a brain injury, it is vital to seek medical advice immediately.

If possible call an ambulance and do not attempt to drive to the hospital. Make sure you get an x-ray and MRI and have a neuro-surgeon examine the injury. If the injury is serious enough, you may need to be hospitalised for an extended period, which of course will be costly. Further, if you suffer long-term difficulties that affect your life, you will be burdened by medical expenses and even loss of income. If the cause of the injury was not your doing or was caused by the negligence of another, you can lay a claim against the relevant parties.

It is important to consult with legal experts to determine the validity of your claim, as well as the relevant medical authorities. If your relative or loved one has suffered a brain injury, you can claim on their behalf too. In the case of a claim, your lawyers will advise you on the best course of action. Often the medical evidence and diagnosis can be technical and complex, determining the direct cause and likely prognosis may be difficult. In cases of minor, but debilitating brain injuries, it may be necessary to seek ongoing medical attention such as physiotherapy or psychological support.

In these cases, it is possible to seek medical compensation for the ongoing treatment from the liable parties.

Should you claim?

The circumstances in which you sustained the brain injury will dictate whether you may be entitled to make a claim for compensation. If you fall from a stack of poorly balanced chairs while climbing into the attic, tumble down the stairs, then most people might say this is a simple accident (as serious as the fall maybe) but if you are involved in a traffic collision, where you or your loved one are the innocent parties; or your place of work did not follow legislated safety precautions, then you may indeed be entitled to receive compensation for your head injury.

It is important to seek advice from experts.

These people will be your GP, neuro specialists, therapists, physiotherapists, lawyers, labour law consultants – if the case of an injury that has taken place at work, and in some case, you may wish to lay a criminal charge at the police station. You might make against a life or medical insurance policy if the injury to the brain is accidental, in other words, no negligence or malpractice is the cause.

In this case, you will still need to engage with the medical professionals involved in your treatment. The first thing you will need to do is to check that there are no specific exclusions to the life insurance or medical insurance policy that excludes the circumstances of the injury, for instance, if it was an injury that occurred due to an accident while engaging in an extreme sport, you might not be covered.

If you do claim

If you do decide to lay a claim against a company or person for damages incurred as a result of their action, you must be prepared to take the matter to court. In some cases, the liable party may be inclined to settle the claim out of court, in which case you have the option to refuse the compensation if you feel it is not adequate. Then the matter must go before a Judge who will hear evidence in support and opposition to your claim. You might be required to testify, as well as proving your continuous disability due to brain injury.

Due to the seriousness of most brain injuries and the costs involved in treating them, many cases are pursued. However be aware that the onus of proof is on you, and so the costs of the proceedings and legal representation must be carried by you until the claim is judged. In the case that your claim is successful, you can claim additional compensation for the legal costs involved in pursuing the claim.

What you need to know

The legal team representing your case will assess how best to proceed with the claim. By analysing the medical evidence and the anatomy of the brain, they will present the best form of the argument to the court. If it can be shown beyond reasonable doubt that you have suffered a brain injury that you deserve to be compensated for, a sum will be determined on the basis of the evidence presented.

For example, if you were earning a large sum each month due to your intellectual abilities, which are then compromised due to a brain injury, the judge may rule that you are compensated in the amount equal to what you would have been able to earn had the injury not occurred in the form of loss of support claims.

Similarly, the judge will allocate compensation according to the strength of the evidence, if it can be shown that the injury was pre-existing and only worsened by the liable party, then the judge may allocate a lower sum. In the case that you cannot prove your case or the liable party has protected itself legally, you will be responsible for all medical and legal costs.

However always keep in mind that despite any legal jargon you may encounter when launching a claim, if the liable party has truly been negligent, then your claim can be successful regardless of their indemnity.