There are many victims of medical negligence and personal injury who believe that they have a claim but for one reason or another have delayed in seeking legal advice.
One of the first questions a solicitor will ask a victim is when did the accident or negligence occur? This is to determine whether the claim is still within the ‘limitation period’. The answer to this question will ultimately determine whether the victim can still pursue their potential legal claim for their injury.
What is the limitation period and how does it affect my claim?
A limitation period is the time period in which the law allows a legal claim to be made against the wrongdoer. If the claim is made outside of the legal time period, as dictated by the Limitation Act 1980, the claim will be time barred. In other words, the victim will no longer be able to pursue a legal claim against the wrongdoer through an English court.
What is the time period in cases of personal injury and clinical negligence and when will it start?
The start of the limitation period for personal injury and clinical negligence cases will differ depending on the circumstances of the accident or injury. The time period however will always be the same as it is dictated by the Limitation Act 1980, more specifically section 11.
Section 11 specifies that the limitation period for injury is 3 years from either:
- the date of accrual of the action; or
- the victim’s date of knowledge of damages
which-ever is later.
In most personal injury cases, the start of the limitation period is generally at the time of the accident. For example, if someone tripped over exposed cables at work and suffered an immediate injury, the 3 year limitation period would start running on the date of the accident, because at the time of the accident the victim will already be aware that that their injury occurred as a result of the potential negligence of their employer.
Not so straight forward cases are those where the injury, and the cause of that injury, cannot be identified immediately. This is when the start of the limitation period is dictated very much by the date on which the victim had knowledge of the injury and it’s occurrence. This can occur in the many medical negligence cases where the victim is not immediately aware of the injury following a medical procedure.
How is date of knowledge determined?
Section 14 of the Limitation Act 1980 sets out what is essentially the test to determine the date of knowledge. In determining date of knowledge, it will in turn determine the date on which the limitation period will start running. The date of knowledge is determined when the victim was aware of the following:
- That the injury in question was significant; and
- That injury was attributable in whole or in part to the act or omission which is alleged to constitute negligence, nuisance or breach of duty; and
- The identify of the defendant; and
- If it is alleged that the act or omission was that of a person other than the defendant, the identify of that person and the additional fact supporting the bringing or an action against the defendant.
It is not always easy to identify on what date a victim has satisfied the above test, therefore investigations will have to take place to determine what could be argued as the earliest date of knowledge in most cases.
How does the limitation period apply to victims who are children and victims who have passed away?
- If the victim of injury is a child the limitation period of 3 years is still applicable to their claim, however the time will not start running until their 18th Birthday. For Example: if a child suffered injury on 6 June 2017 but they will only turn 18 on 11 April 2022, the 3 year Limitation Period will only start running from 11 April 2022 and thereafter expire on 11 April 2025.
- Where the victim of injury has passed away, a claim may be pursued by the deceased’s estate, provided the claim was not time-barred before their death. The limitation period in those cases will start running either from the deceased’s date of knowledge when they were alive or from the date of their death.
How to pursue a legal claim through the English courts to stop time ticking
A claim for injury must be issued at the court before the expiry of the limitation period i.e. before the end of the 3 year period. If your claim is reaching the end of the 3 year limitation period, in order to protect your claim, proceedings must be issued at the court to protect your legal position and to avoid your claim being time barred by reason of the Limitation Act 1980.
If you fail to issue proceeding before expiry of the 3 years period, your claim will be time barred by statute and you will no longer be able to pursue your claim through the English courts.
Alternatively, to stop time running the parties may enter into a ‘standstill agreement’. This is an agreement where the parties agree to suspend or extend the limitation period.
What happens if I miss the limitation deadline?
If a limitation deadline is missed and you failed to either issue proceedings to protect your legal position or enter into a standstill agreement, it is likely that if you decide to pursue your claim against the wrongdoer they will raise the fact that you have missed the limitation deadline as a defence, and therefore argue that you no longer have a legal right to pursue your claim against them.
The court do have a discretion in personal injury cases to extend the limitation period under section 33 of the Act but the victim will have to evidence that there were compelling reasons for the delay and that the wrongdoer will not be prejudiced if they were allowed to pursue their claim and that there will be a fair trial.
The court have only exercised this discretion in very exceptional circumstances. Consequently, it is advisable to avoid missing the limitation deadline in the first instance.
What to do if I have a personal injury claim?
If you believe you have suffered injury as a result of an accident, whether at work, in a public place, following surgery or treatment, it is important to contact a solicitor to discuss your claim as soon as possible.
Ideally, you should contact a solicitor as soon as possible in advance of the 3 year limitation deadline to enable them to investigate the claim. However, if you believe your claim may be approaching it’s 3 year limitation deadline, you should contact a solicitor immediately, who will advise you accordingly.
Should you have any questions regarding the above, or need any related legal advice, please contact Jenny Chan, at [email protected], or on 020 7725 8029, or one of the litigation team.