Botswana: Challenging prescription in medical negligence claim

Salc : Staff Writer

In January 2017, SALC supported the filing of an appeal against a High Court decision dismissing a claim for medical negligence on the grounds that too much time had elapsed between the time of the injury and when the case was filed(the claim had prescribed). The question on appeal is the appropriate interpretation of the Botswana Prescription Act relating to  when a person can be said to have obtained knowledge of the facts giving rise to their claim. In this case, the Appellant,who had undergone a total abdominal hysterectomy, developed symptoms,and she was later diagnosed as having a fistula. The court held that she had knowledge of the facts giving rise to her claim when she first noticed the symptoms, as opposed to when she knew the reason for the symptoms(the proper diagnosis).

Judgment in the appeal was handed down on the 26th October 2018. The Court of Appeal upheld the appeal, thereby reinstating the claim. The court found that the suspicion of the cause of the Appellant’s injury was insufficient to constitute knowledge because she did not know for a fact what had caused the leakage, and knowledge of the cause of her condition was a material fact for the purpose of determining who was at fault. Thus, the relevant date for the purposes of prescription was not the date she noticed the leaking, but the date she became aware of the cause for the leaking.

The case was argued by Kelly Kewagamang of Rantao Kewagamang Attorneys.

Court of Appeal Judgment

High Court Judgment 

News Release