Best before date of litigation

Does a harmed party have an unlimited amount of time to claim for damages from an alleged wrongdoer?

The answer to this question is no. The law of prescription places limitations on the amount of time an aggrieved party must institute legal action against a person who has caused them harm. The law is well developed on the issue of how long a litigant must institute action. There are two pieces of legislation which deal with this matter and numerous judgments which have developed the interpretation of these laws.

The law of prescription is governed by the Prescription Act 68 of 1969 and in certain situations by the Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002. The Prescription Act has been described as the cornerstone of the laws regulating the extinction of debts by prescription. The Prescription Act provides for varying periods of prescription but the general time period for prescription is three years. The Prescription Act in section 12(3), states that a debt shall not be deemed due until the creditor has knowledge of the facts from which the debt arises, and the identity of the debtor, provided that the creditor shall be deemed to have such knowledge if they could have acquired it by exercising reasonable care.

There are exceptions to the periods of prescription, the most significant of which is if the claimant is impeded by either mental illness or is a minor (less than 18 years old). Prescription would then, if the claimant is a minor or insane, be completed and the claim would have prescribed one year and one day after the relevant impediment ceased to exist. A minor’s parent’s or guardian however can institute action on behalf of the minor and this is true for an insane person’s curator.

In any litigation where there is a claim from a party for damages two questions need to be asked. These questions are important when determining if a claim has prescribed. When did the harm occur? This for example is the day that the medical intervention (e.g. surgery) was completed i . The second question makes calculating prescription treacherous. It must be asked when the harmed party became aware of the harm and identity of the debtor? The patient who underwent the surgery may only have discovered that he had suffered harm a few days, weeks, months or even years following the surgery. Prescription only starts to run when the claimant reasonably ought to have become aware of the harm and the identity of the debtor (the person who caused the harm).

In the February 2018 Constitutional Court judgment of Mzwandile Owen Loni v MEC of Health Eastern Cape the court was faced with the question of when prescription began to run on the facts of the case. The Applicant was first admitted to hospital on August 1999 and treated for several months for a gunshot wound to his leg. The applicant (the patient) continued to experience pain following his admission. This included wound sepsis and other complications which caused him severe pain and discomfort. The applicant however only instituted a medical negligence claim in June 2012, which was just shy of 13 years after the initial harm arose. The applicant argued that he only acquired knowledge of the negligence when he went to a specialist in 2011 to treat the continued pain in his leg and his constant limp despite being in possession of his hospital file from 1999.

In a similar case of Dirk Links v MEC of Health, Northern Cape in 2016, the Applicant only became aware of the harm which was caused to him a few months after his first surgery took place. That surgery took place on 5 July 2006. The patient found out about the harm caused to him only in September 2006 when the full extent of the harm became apparent. However, he only instituted action on 6 August 2009 which is 3 years and 1 month after the surgery took place. The defendant raised a special plea of prescription. The High Court concluded that the claim had prescribed. The Supreme Court of Appeal did not grant leave to appeal so the Constitutional Court was approached. The Constitutional Court granted leave to appeal. The Constitutional Court interpreted the Prescription Act and asked the question when does a person reasonably become aware of what caused the harm and who to calculate when prescription starts to run. The court held that:

“... it would be unrealistic for the law to expect a litigant who has no knowledgeof medicine to have knowledge of what caused his condition without having first had an opportunity of consulting a relevant medical professional or specialist for advice. That in turn requires that the litigant is in possession of sufficient facts to cause a reasonable person to suspect that something has gone wrong and to seek advice.”



However, the court in Loni vs MEC pointed out that the facts of that case differed significantly from the facts in the Links vs MEC case as the applicant in Links vs MEC needed to consult with a medical expert to establish a causative link between the harm suffered and the medical negligence. This is because Links did not have knowledge that the harm suffered was due to medical negligence specifically. However, in Loni vs MEC the applicant had knowledge that the treatment he received was clearly incorrect.

The two judgments seem to be in slight contradiction of each other but as always the test is reasonableness. On the facts, was it reasonable for the Applicant in Loni vs MEC to take more than a decade to figure out that the treatment he received in 1999 was negligent and could have been administered better? The court thought not.

The lesson to be learnt from these judgments is that yes there is a best before date for claims, however, caution must be exercised. Do not assume that because three years have come and gone since an incident that the patient can no longer claim. On the other hand, a patient must not assume that these judgments automatically permit a belated claim. Patient’s must be aware of their rights and the obligations on them to exercise those rights sooner rather than later, by instituting appropriate investigations and making the necessary enquiries to enable them to do so.

i. In the context of the prescription act a claim for damages arising from medical malpractice damages allegedly caused by a healthcare practitioner the relationship between the patient and the healthcare practitioner is that of creditor and debtor.

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Dominique Spies

Dominique is an Attorney of the High Court of South Africa and part of the claims handling team of the Natmed Group

Natmed Medical Defence (Pty) Ltd
First published May 2018