Sylvia takes the train to work every day. On 7 May she stepped off the train at her normal stop, when she slipped and fell. Does she have a claim?
What can she claim for?
1. PRASA (Passenger Rail Agency of South Africa) has a legal duty of care to ensure the safety of all commuters. The aforementioned duty includes taking all reasonable steps to maintain the train in a safe and working condition.
To prove a successful claim against PRASA, the incident which caused Sylvia to fall should result from the negligence of PRASA. Negligence can arise from an act or an omission.The following factors should be taken into account to consider whether Sylvia has a valid claim:
a. What caused Sylvia to slip? Was the surface wet and, if so, why was the surface wet?
b. Did the train jerk forward causing Sylvia to fall?
c. Did the train come to a complete stop before Sylvia stepped off?
d. Did someone push Sylvia out of the train?
e. Could warning signs have prevented the fall?
f. Could PRASA have done something to prevent Sylvia from falling?
g. Did PRASA take reasonable steps to prevent Sylvia from falling?
h. Did PRASA check and maintain the train on a regular basis?
2. Once the merits of the matter have successfully been proven, Sylvia will be entitled to claim a certain amount (the quantum). The quantum of the matter consists of five different heads of damages:
a. Past medical expenses: Sylvia can claim the expenses she incurred for treatment she has received for the injuries she sustained in the incident upon proof thereof. Therefore it is important to keep all substantiating vouchers.
b. Future medical expenses: Sylvia will be entitled to claim for her future medical expenses resulting from the incident, whether it be operations, physiotherapy, pain medication, psychological treatment, etc. The amount will be quantified with the use of medico-legal reports where it is indicated what treatment she will require in the future as well as the costs thereof. Actuarial principals will be applied to ensure she is compensated for the exact amount she is entitled to
.c. Loss of income: Sylvia will be entitled to claim for past and future loss of income resulting from the injuries she sustained, if her injuries prohibit her from performing her job. The amount will be quantified by using medico-legal reports.
d. Loss of earning capacity: Sylvia will be entitled to claim for loss of earning capacity, should her injuries decrease her ability to earn an income.
e. General damages for pain and suffering and loss of amenities of life. There is no equation in South African law to calculate general damages. Previous case law with similar facts as Sylvia’s will be used to determine the amount.
How will the process work? What are the steps?
Sylvia must not wait too long before consulting with an attorney as litigation matters should be instituted within certain time frames.
During the first consultation the attorney will obtain her personal information, a description of the merits of her matter as well as the injuries she sustained. If the attorney deems it necessary a qualified expert will be appointed to investigate the merits and circumstances of her incident as well as to obtain statements, photographs, a reconstruction of the incident, etc.
A letter of demand will be sent to PRASA informing them of the facts surrounding the incident and demanding payment of a certain amount. PRASA has 10 days to pay the amount, failing which a summons will be issued to hold PRASA liable for the damages suffered. Once the plea of the defendant (PRASA) is received, the attorney can apply for a trial date.
Expert witnesses will be appointed by the attorney to assess the injuries Sylvia sustained. These expert witnesses can include an orthopaedic surgeon, occupational therapist, industrial psychologist, clinical psychologist, psychiatrist, neurologist, rehabilitation practitioner, etc. The type of expert who is appointed will depend on the type of injuries Sylvia sustained. The purpose of the medico-legal reports is to quantify the matter to ensure that Sylvia is fully compensated for the damages she suffered.
The matter can either proceed to trial or it can be settled out of court. In the event that PRASA makes an offer that places Sylvia at risk, a settlement agreement can be reached by the parties. Sylvia’s legal representatives should advise her to accept an offer if indications are that she will not get a better deal by going to court. At Simpsons Attorneys our aim is to ensure that matters are finalised in a cost effective manner. Unfortunately, if PRASA’s offer is not reasonable and places Sylvia at risk, her legal representatives have no other option but to proceed to trial.
Litigation is unfortunately a timeous process and the claim can be complicated depending on the merits of the matter. Sylvia must at all times keep any relevant documentation, especially proof of her medical expenses pertaining to her injuries.
What documentation will Simpsons require to assist her?
1. Identification book / card;
2. Details of medical practitioners and hospitals which treated her for the injuries she sustained;
3. Relevant medical documents and bills;
4. Valid train ticket;
5. Photographs, if any is available;
6. Details (name, contact numbers and address) of any witnesses and any personnel of PRASA assisting her after the fall.
What may hinder the case?
Sylvia cannot be compensated for her own negligence. If Sylvia’s own negligence could have contributed to or caused the fall, she might not be successful with a claim against PRASA. We need to determine whether Sylvia could have prevented herself slipping and falling by keeping a proper lookout and by being careful. The Apportionment of Damages Act makes provision for a merits apportionment. In the event that Sylvia contributed towards her own damages, an apportionment will be applied to her claim. The damages recoverable shall be reduced by the court to such an extent that the court may deem just and equitable having regard to the degree Sylvia was at fault.
The effect thereof will be as follows:
Example: In the event that the court decides to make a 50/50 apportionment, i.e. PRASA is 50% to blame for the incident and Sylvia is 50% to blame for the incident, the effect thereof will be that for every R1 PRASA is liable to pay Sylvia they will only pay out 50c and keep 50c.
