When a person suffers an injury in an accident or because of medical negligence, they may not realise that they can rightfully claim compensation. They may also be suffering circumstances that make it difficult to get in touch with an attorney to help them, such as financial or mobility issues. This can cause a delay in them approaching a lawyer to pursue a personal injury claim.
This matters because there is a risk that your personal injury claim may not be successful if the time limit for pursuing it is exceeded. Every case has a time limit prescribed to it, which means if you leave it too long before approaching an attorney, you may find that too much time has passed, and your right to claim has lapsed.
Let’s look at how this could affect your claims against different institutions in South Africa.
Time limits to bring a claim against the RAF
With a hit and run accident (when you don’t know the identity of the driver or owner of the motor vehicle, or contact details of the person who caused your injury, or they fled the scene of the accident), you are limited to two years to lodge the claim.
This means if you want to claim from the Road Accident Fund (RAF), you have two years from the time of the accident to fill in the documentation. The form they will provide you with will need to include your information, the vehicles and people involved in the accident, the date and place of the accident; the amounts claimed; and a medical report. When you submit this form, it registers your claim and notifies the RAF that you have a lawsuit pending against them.
After this two-year time limit has lapsed, we say the claim has ‘prescribed’. This means you no longer have the right to lodge a claim against the RAF. You are also limited to five years for the summons to be issued from date of a hit and run accident. A summons is a document issued by a court, which begins the litigation process. The summons is issued to the RAF, notifying them that you have legal proceedings starting against them.
In the case of an accident, where you know who the person who caused your injury is and have their contact details (therefore not a hit and run), you have three years to lodge a claim and three years for the summons to be issued.
There is an exception to the prescription when approaching the RAF. If the person claiming is a minor, the prescription period only starts once the victim turns 18. From this point on, they have three years to lodge a claim. So if a young child is injured in a hit and run or other road accident, they can bring their case to the RAF many years later, once they have turned 18.
Other grounds for delaying the prescription period applies if the harm caused to the victim only manifests later. An example of this is if an incident results in someone’s death after the incident occurred.
Your options when a personal injury case prescribes
Why are there prescription periods? These time frames are put in place to prevent people from coming forward many years after an accident and claiming they have sustained an injury and looking at claiming. However, there are cases where your attorney can avoid the prescription period. For example, if someone has suffered a brain injury in an accident, they may not have the mental ability to lodge a claim against the RAF in the limited time period. Only years later, a friend or family member becomes aware that they have a right to claim against the RAF and helps them take the matter further.
If a person has a brain injury and the case has prescribed, they can approach a personal injury attorney who will appoint a curator through the courts. The curator will assist the client with the administration of the claim and finalisation of the claim with the personal injury lawyer’s assistance.
If you are not sure if your case has prescribed or not, get in touch with a personal injury lawyer, and they will give you advice on your particular matter.
Personal injury claims against the state
Different institutions have different periods they apply to claims.
Examples of claims against the state include those against state hospitals, Eskom, PRASA or Metrorail, and the South African Police Force (SAPS) and Minister of Correctional Services. They can include:
- Medical malpractice claims
- Claims that are related to electrocution
- Claims if there are injuries caused by a train accident or incident
- Police brutality
- Rape or prison violence
For personal injury claims against the SAPS, or the Department of Health, for example, there is a six-month period in which you need to give written notice of the incident that took place and notify them that you intend to proceed with your action against them. However, if you approach your personal injury attorney after these six months, you can still give this notification and proceed with your case with their help. While the six-month period is a prescription period, your attorney can ask for an extension (called condonation). If the police or the specific state department refuses the extension, they can take the matter to court, and the court may grant it.
More than a six-month delay in notifying these government institutions won’t affect the legal process. Still, it’s recommended you get in touch with a lawyer as records get destroyed or go missing. If, however, you only approach an attorney years after the incident, your attorney can still send you for a medical assessment to prove your injuries are linked to the incident.
Other types of personal injury claims
There are different time limits imposed on other types of personal injury claims. For example, the time limit for proceeding with a medical malpractice claim is three years from when the alleged negligence occurred. For every case and situation, exceptions may apply. A personal injury lawyer can advise whether your claim is valid and the time limits that apply to your situation.