A serious injury can change your life in a moment: through a road accident, a fall on someone else’s premises, a defective product or a medical procedure that goes wrong. On top of the physical and emotional impact, there are medical bills, lost income and uncertainty about the future.
South African law allows injured people to claim compensation where someone else was legally responsible. But these claims are subject to strict deadlines and technical requirements, and many valid claims are lost because they are brought too late or without the right evidence.
This article explains the main types of personal injury claims, what must be proved, the deadlines that apply and what you can claim.
What must be proved
Most personal injury claims are delictual claims. The claimant must generally prove:
- conduct by the defendant, such as an act or a failure to act;
- that the conduct was wrongful;
- fault, usually negligence: that a reasonable person in the defendant’s position would have foreseen the harm and taken reasonable steps to prevent it, and the defendant did not;
- causation: that the conduct caused the injury; and
- damage: the financial and non-financial loss suffered.
Medical negligence
A doctor, hospital or other healthcare provider is negligent if it fails to exercise the degree of skill and care that a reasonable practitioner in the same field would exercise in the same circumstances. A specialist is measured against a reasonable specialist, not a general practitioner. A bad outcome is not, on its own, proof of negligence. Some complications occur even when treatment is properly performed.
Common examples include:
- misdiagnosis or delayed diagnosis;
- surgical errors;
- medication errors;
- birth injuries, including brain injuries caused by inadequate monitoring during labour;
- failure to monitor a patient or to refer them in time; and
- hospital-acquired infections caused by poor infection control.
Informed consent. A patient must be told of the material risks of a procedure before agreeing to it. A risk is material if a reasonable person in the patient’s position would attach significance to it, or if the doctor should reasonably be aware that this particular patient would. Treatment without informed consent can found a claim even if the procedure itself was performed competently.
Evidence. Medical negligence claims depend heavily on expert evidence. Your attorney will need your complete medical records, which you are entitled to request under the Promotion of Access to Information Act, and reports from independent medical experts on whether the care fell below the required standard and whether it caused the harm.
Road accidents: the Road Accident Fund
Claims for injuries caused by the negligent driving of a motor vehicle in South Africa are brought against the Road Accident Fund (RAF), not the driver personally. Key points include:
- The claim must be lodged within three years of the accident where the driver is identified, and within two years in hit-and-run cases. If the claim is not settled, summons must generally be issued within five years of the accident.
- Compensation for general damages (pain and suffering) is only payable if the injury is assessed as serious under the prescribed method, supported by a medical report in the prescribed form.
- Claims for loss of income and loss of support are subject to a statutory cap.
- Past and future medical expenses are covered, often through an undertaking by the RAF to pay future treatment costs as they arise.
The government has announced plans to replace the current fault-based system with a no-fault Road Accident Benefit Scheme, under which claimants would receive defined benefits but would lose the right to claim general damages and to sue negligent drivers. The proposal has not yet become law. Anyone with a potential claim should lodge it under the current system without delay.
Other personal injury claims
- Slip-and-fall and premises claims against shopping centres, businesses and property owners who fail to keep their premises reasonably safe.
- Product liability claims under section 61 of the Consumer Protection Act, which makes producers, importers, distributors and retailers liable for harm caused by unsafe or defective goods, without the need to prove negligence.
- Dog bites and animal attacks, where the owner can be liable without proof of negligence in certain circumstances.
- Assault and wrongful arrest claims, including against the police.
Injuries at work are generally covered by the Compensation for Occupational Injuries and Diseases Act, which limits the employee’s right to sue the employer directly.
Deadlines: do not wait
Under the Prescription Act 68 of 1969, most delictual claims prescribe after three years. The period generally runs from when the claimant knew, or reasonably should have known, the identity of the defendant and the facts giving rise to the claim. For children, prescription is generally delayed until they turn 18.
Claims against state hospitals, the police and other organs of state have an additional requirement. Under the Institution of Legal Proceedings against Certain Organs of State Act 40 of 2002, written notice of the claim must be given to the relevant organ of state within six months of the debt becoming due. A court can condone late notice in certain circumstances, but this adds cost and uncertainty.
What you can claim
- past and future medical expenses, including surgery, therapy, medication, assistive devices and home or vehicle modifications;
- past and future loss of earnings or earning capacity;
- general damages for pain and suffering, disfigurement, loss of amenities of life and emotional shock;
- care costs, including caregivers and case management; and
- in fatal cases, loss of support for dependants, and funeral costs.
In serious cases, particularly brain injuries in children, future costs can run to many millions of rand. Courts may require part of the award to be protected through a trust so that it is properly managed for the injured person.
Legal costs and contingency fees
Many personal injury matters are handled on a contingency fee basis under the Contingency Fees Act 66 of 1997. The attorney is paid only if the claim succeeds, and the fee is capped at no more than double the normal fee and, in any event, no more than 25% of the total amount awarded. Any contingency fee agreement must be in writing and comply with the Act.
What to do if you have been injured
- Get medical treatment and follow your doctors’ advice.
- Keep records: medical reports, accident reports, photographs, receipts and the names of witnesses.
- Report road accidents to the police and obtain the case number.
- Request copies of your medical records.
- Do not sign settlement documents or waivers before taking legal advice.
- Speak to an attorney early, especially where a state hospital or the police may be involved.
How O’Reilly Law can help
We assess personal injury and medical negligence claims, obtain the medical records and expert evidence required, deal with the Road Accident Fund, insurers and organs of state, and litigate where a fair settlement cannot be reached. We also act for healthcare providers and businesses facing claims.
Injured, or concerned about the treatment you or a family member received? Contact us for an assessment before the deadline passes.
Related reading: Litigation strategy · Urgent interdicts in South Africa
This article is general information and not legal or medical advice. Correct as at October 2026.