Different Rules for Personal Injury Claims against the State: What you should know

No matter which body of government is involved, a personal injury claim against the state is subject to different rules and limits than a claim against an individual or company. Before you decide to proceed with a claim, it’s important to be aware of the requirements.

This is according to Kirstie Haslam, partner at DSC Attorneys, who says that written notification of your intention to lay a claim must be sent to the organ of state in question – for example, the Minister of Health in the case of a state hospital or the Minister of Police for the SAPS.

She says that this notification must be sent within six months of the incident occurring. 30 days after this notification has been sent, legal proceedings can be instituted.

“If you or your legal representative fails to send this notification and you have a valid reason, you can apply to the court for condonation,” she explains. “This means you can request permission from the court to continue with the case even though it has officially lapsed.”

However, she points out that you need to have a good reason, and that ignorance of the requirement won’t typically be enough.

Prescription period for claims against the state              

Claims against the state are subject to a time limit, also referred to as a prescription period. Generally, she says you must file your claim within three years of the incident in question. “Even if you didn’t know about the time limit, your claim may lapse once this period has passed.”

However, Haslam says that there are, a few circumstances in which the prescription period might be extended including:

• if you’re mentally handicapped
• if you’re a minor (in which case the prescription period starts on your eighteenth birthday and lasts one year)
• if the harm caused occurs only later – for example, if an incident results in someone’s death a few months after the incident occurred.

Types of claims against the state

Haslam highlights some of the types of claims you might need to file against organs of state.

• personal injury claims against PRASA, Metrorail or Department of Transport & Public Works
• medical malpractice claims against state hospitals
• claims against Eskom or other responsible local authority as a result of electrocution-related injuries/fatalities
• unlawful assault, wrongful arrest or detention claims against the South African Police Service (SAPS) or your local metropolitan police department, and claims for police brutality.

Claims against the state with help of attorney

Because of the time limits imposed on claims against the state, Haslam says that it’s important to get in touch with an attorney as soon as possible after an incident occurs. “It’s also vital to use the services of attorneys who are experienced in handling state cases, which have unique characteristics and requirements,” she advises.

“They can assess your claim, help prepare supporting evidence and represent you in legal proceedings, giving you the best chance of receiving the compensation you deserve.”