Prescription: How long do I have to claim for personal injury?
According to South African law legal action for claims have to be done within a certain time or it will lapse (fall away). This is called prescription of a claim. This should not be confused with a prescription for medication used by doctors and has a completely different meaning in law.
Prescription is a legal principle in terms of which a debtor’s liability to pay a debt is extinguished after the passing of prescribed time periods. Click here to read more
How much time do I have to claim for personal injury?
Different cases have different time periods which can become quite confusing and it is important to know which periods apply to your situation. To ensure that your claim does not prescribe, it is always advisable to speak to an attorney specialising in personal injury litigation. There could be special circumstances that influence the time periods and you can find more details on the process.
How long you have to claim can be influenced by:
- The type of case (Road accident fund or medical negligence);
- When you became aware of the negligence and damage;
- Your age (whether you are under or over the age of 18); and
- Mental capacity and competence.
General prescription
In terms of the Prescription Act 68 of 1969 (“the Act”), “debts” prescribe after a period of 3 years.
In order to avoid losing the legal right to enforce a claim, a claimant must interrupt prescription by instituting proceedings against a debtor before the end of the 3 year period. The 3 year prescription period is calculated, and begins to run, from the date on which the “debt” becomes “due”. A “debt” in terms of the Act is only deemed to be due when a creditor has “knowledge” of both the identity of the debtor as well as of all the facts from which the “debt” arises (or can reasonably be expected to have obtained that knowledge).
Minor children (under 18 years)
The Prescription Act makes allowance for the fact that underage, disabled or mentally incompetent or legally incapacitated are unable to make the necessary decisions to handle their own affairs.
In cases of minor children, the Act allows them to claim within 3 years of the incident or before their 19th birthday, whichever period is longer.
An example to illustrate this difference would be:
- If you are injured on your 10th birthday, you become legally able to claim at age 18 and thus must take action before your 19th birthday. This is because a period of more than 8 years will have passed since the injury (which is longer than the general 3 year period).
- If you are injured exactly on the date of your 17th birthday, you become legally able to claim at 18. With the general 3 year rule, you would have time to claim until one day before your 20th birthday.
Mentally incompetent and legally incapacitated persons
Individuals who have suffered brain damage, severe disability or other mental difficulties resulting in them not being able to handle their own legal affairs, have special exemption to prescription rules. These cases do not prescribe and curators or guardians can be appointed to represent them in litigation. The only exception to this rule, is in the case of unknown drivers as discussed below.
In the case of individuals who have suffered a temporary disability which incapacitates them, and legal capacity is regained at a later stage, prescription will continue to run only once mental capacity is regained. The rule will then apply that the claim will prescribe within 3 years of the claim arising or within one year of regained mental/legal capacity, whichever happens later.
Road Accident Fund claims
In normal circumstances (except for unknown driver cases), the necessary claim forms must be submitted with the Road Accident Fund within 3 years of the date of the incident. Provided that the claim forms were submitted timeously, legal action in court by way of issuing a summons must be done within 5 years of the accident.
In the case of a minor (under the age of 18 years), prescription is paused until the 18th birthday, after which it starts ticking on. The claim documentation must be submitted before the 21st birthday and summons issued before the 23rd birthday.
In the case of a temporary mental incapacity, prescription will similarly be paused and only commence running once the mental capacity is regained.
Prescription does not run against an individual with permanent brain damage or mental incapacity.
See below for the exceptions to the rule in the cases of hit and run or unknown driver claims.
Unknown driver (Hit and Run) cases
“Hit and Run” claims are also called “unidentified driver” claims, that is, where the identity of the guilty driver or owner of the motor vehicle is unknown unidentified.
Hit and Run claim documents must be lodged with the Road Accident Fund (RAF) within 2 years from the date of the accident. To avoid a claim lapsing after submission of the claim documents, the RAF has to be sued within 5 years from the date of the accident.
Unlike other accidents, in cases where a driver or owner of the vehicle is not identified, there is a strict 2-year rule. Even if a child is still a minor or a person has brain damage, the claim has to be submitted within 2 years and legal action is taken within 5 years.
For more information on unknown driver claims see our article.
How do I know if my claim has prescribed?
Determining the time periods within which to claim is not always straightforward. It is best to seek the help of a specialist attorney.
If you need any advice on your personal injury matter or need to discuss your case, feel free to contact Paul du Plessis Attorneys on 012 809 1588 or send us an email at paul@pauldup.co.za.