This is one of the most common questions asked by Claimants. The general rule in personal injury claims is that a Claimant has 3 years to make a claim from the date of the negligence or, from the date that they learned that their injuries were caused by someone else’s negligence. However, this is a very ‘broad brush’ assessment of the time limits and each case must be assessed on its own facts.
The limitation period
The 3 year time limit is stipulated by s11 of the Limitation Act 1980 (LA 1980). However, it should be noted that if a Claimant sues their solicitor for professional negligence arising from a personal injury claim, the time limit is 6 years.
Does the date change if the victim of negligence has passed away? Yes, the date does change.
An example, may be where a cancer sufferer pursuing a claim against their GP for a misdiagnosis, passes away whilst the claim is on-going. S12 states: … no action shall be brought after the expiration of three years from –
- The date of the death; or
- The date of knowledge of the person for whose benefit the action is brought;
Whichever is later.
Invariably, the 3 year time limit will expire 3 years from date of the Claimant’s death.
The ‘Date of knowledge
As can be seen by s11 (and s12) the 3 year time limit can be determined by the Claimant’s ‘date of knowledge’. The date of knowledge is defined by s14 of the Act. S14(1) states the a Claimant will ‘knowledge’ if they knew:
- That the injury in question was significant; and
- That the injury was attributable in whole of in part to the act or omission which is alleged to constitute negligence, nuisance or breach of duty; and
- The identity of the defendant;
S14(2) of the Act also clarifies that the injury is significant if the person whose date of knowledge is in question would reasonably have considered it sufficiently serious to justify his instituting proceedings for damages. S14(3) adds that knowledge can be implied by what he/she might reasonably have been expected to acquire -
- from facts observable or ascertainable by him; or
- from facts ascertainable by him with the help of medical or other appropriate expert advice which it is reasonable for him to seek
The date one can become fixed with a ‘date of knowledge’ is likely differ from case to case. For example, a Claimant is diagnosed with mesothelioma (cancer caused by asbestos exposure) in 2013, liability is admitted in 2014, but Court proceedings are not issued until 2019 by the Claimant’s solicitors.
In this situation, a defendant could argue that the claim is time barred because:
- The Claimant’s injury was significant in 2013 - (s14(1)(a));
- The Claimant knew his mesothelioma was caused by his (negligent) occupational exposure to asbestos dust - (s14(1)(b));
- The Claimant was aware of the identity of the Defendant (the employer where the exposure took place) - (s14(1)(c));
- There was no dispute as to knowledge of the seriousness of the injury (terminal cancer) – this is accepted as being from the date of diagnosis (2013) - (s14(2));
- His diagnosis was made by a respiratory specialist (medical expert) at hospital therefore the facts were both observable and ascertainable by him at that time (s14(3)).
The Claimant would therefore find it hard to rebut the presumption that the claim had been brought out of time.
Children and those with mental health conditions
In cases involving children, the 3 year time limit does not start to run until the child’s 18th birthday. Therefore, Court proceedings would need to be issued by the Claimant’s 21st birthday at the latest.
Claims where an individual’s mental capacity is in question are more complicated. If, at the time of the accident or as a result of the accident, the Claimant does not have mental capacity, the 3 year time limit will not start to run. However, if at any time thereafter, they regain some capacity, the 3 year time limit will start to run.
This is a very complex area and specialist advice is required.
What happen if I miss the 3 year time limit?
If the 3 year time limit is missed it may be possible to continue with a claim by making an application pursuant to s33 of the Limitation Act. The Court shall have regard for the length and the reasons for the delay, the extent to which the delay may make the parties evidence less cogent, the conduct of the Defendant, any disability suffered by the Claimant after the action arose, the extent to which the Claimant acted promptly and reasonably once they knew a claim could be made and medical, legal or other advice that may have been received.
Johnathan Steventon-Kiy, specialist clinical negligence lawyer, says:
“Limitation is a really complex area of personal injury law. It is imperative that if you have suffered an injury and you are concerned about the time limits, that you contact a specialist solicitor as soon as possible. At Biscoes, our specialist solicitors have successfully pursued thousands of claims for accidents, clinical or medical negligence and industrial diseases where complex questions regarding time limits have arisen.”
Contact our specialist medical negligence solicitors on 02392 660 261 or visit www.biscoes-law.co.uk for more information. You can also follow us on twitter using the handle @biscoesmedneg