#10459 - Limitation Additional Claims - Personal Injury and Clinical Negligence

LIMITATION

ADDITIONAL CLAIMS

TIMEFRAMES IN LITIGATION

The limitation period and when to deal with limitation

• Applicable to personal injury and clinical negligence - s. 11 and 12 Limitation Act 1980

• Where the claimant

  • claims damages for negligence, nuisance or breach of duty (this includes assault – R v Hoare [2008])

  • AND that claim consists of or includes a claim for personal injuries

  • the claimant must commence his claim (ie. claim form issued/received by court to be issued) within 3 YEARS from (s. 11(4))

    • the date on which the cause of action accrued – s. 11(4)(a) OR

    • the date of knowledge of the person injured – s. 11(4)(b)

    • whichever is the earliest

• The day on which the cause of action accrued is excluded when calculating the 3 years

• If the last day of the period is a Saturday, Sunday or Bank Holiday, time is extended until the next day when the court is open and the claim can be issued

• When the 3 years expires, the claimant is not prohibited from commencing proceedings

• BUT defendant may seek to have claimant’s claim struck out on grounds: statute barred

• The claimant may then apply to the court for limitation to be disapplied under s. 33 LA

• Dealing with limitation as preliminary issue

  • Dedicated hearing

  • Advantages – dealt with one way or another at an early stage

  • Disadvantages – hearing can involve a fair amount of time and money and the evidence becomes a rehearsal of the eventual trial

• Dealing with limitation at trial

  • First day – can deal with limitation

  • Advantages – costs are included in the costs of preparing for trial

  • Disadvantages – parties have a degree of uncertainty up until the day of trial and for defendants, many judges reluctant to dismiss on basis of limitation

Persons under a disability

• s. 38(2) LA 1980 – a person is under a disability while he is:

  • Under 18 OR

  • Lacks capacity within the meaning of the Mental Capacity Act 2005 to conduct proceedings

• s. 28(6) – a person under a disability may bring a claim at any time up to 3 years from the date when he ceased to be under a disability

  • So where a child is injured, limitation runs from his 18^th birthday and expires on his 21^st birthday

  • Where a person lacks capacity, limitation is ONLY delayed if he was so disabled when the cause of action first accrued

Claims following fatal accidents

• Claims under the Law Reform (Miscellaneous Provisions) Act 1934

  • Where a claim is brought on behalf of the deceased’s estate, s. 11(5) LA provides that if the injured person dies before expiration of limitation period of 3 years as set out in s. 11(4), the limitation period shall be 3 years from:

    • The date of death OR

    • The date of the personal representative’s knowledge (if later)

  • If there is more than 1 personal representative, time runs from earliest date

  • If the person dies after expiry of s. 11(4) limitation period without commencing proceedings, the claim is statute-barred (although the court can exercise its s. 33 discretion)

• Claims under the Fatal Accidents Act 1976

  • s. 12(1) LA - a claim under FAA 1976 cannot be brought if death occurred when the person injured could not maintain a claim and recover damages – whether because of limitation of any other reason

  • So if the deceased’s claim is statute barred, so is the dependant’s

  • If the claim is not already statute-barred, s. 12(2) provides that the limitation period for the dependants is 3 years from:

    • The date of death OR

    • The date of knowledge of the person for whose benefit the claim is brought (if later)

  • But the dependant can always apply for discretion under s. 33

Actual knowledge

• Sometimes it is not clear when the injury occurred because:

  • The treatment received was ongoing

  • The injury does not heal as expected

  • The worker might not be aware that the illness was caused at work

  • It may be months after the event before the claimant suspects alleged negligence

  • In this situation, the claimant has 3 years from the date of knowledge

• Under s. 14, the date of knowledge is the date on which the claimant first knew:

  • That the injury in question was significant AND

  • The 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 identity of the defendant AND

  • If alleged act/omission was that of someone other than defendant, identity of that person AND additional facts supporting bringing of an action against the defendant

• The subjective test is to be applied – what did the claimant know and not what would a reasonable layman realise – Spargo v North Essex HA [1997]

• The claimant may be fixed with actual knowledge of certain facts even if a medical expert has advised him that this was not the case – Sniezek v Bundy Ltd (2000)

• The injury was ‘significant’

  • s. 14(2) – injury is significant if the claimant would reasonably have considered it sufficiently serious to justify instituting proceedings against a defendant who did not dispute liability and was able to satisfy a judgment

  • The court considers the gravity of the injury and not its effect or perceived effect on the personal life or career of the claimant

  • The date of knowledge is not affected by the fact that the consequences turned out to be more serious than was originally thought

  • With multiple illnesses arising from the same events the latest injury is the injury in question and date of knowledge runs from this

• Attributable to the act or omission

  • ‘Attributable’ means ‘capable of being attributable to’

  • Knowledge of an ‘act or omission’ does not have to include knowledge that the act/omission is actionable in law

Constructive knowledge

• The defendant may argue that the claimant had actual knowledge earlier OR should have obtained it earlier – (s. 14(3))

  • The patient had knowledge earlier e.g. when treatment failed to produce cure

  • The worker had knowledge when the symptoms emerged

  • The defendant will argue that the claimant did know/should have known earlier

• The claimant cannot argue he did not have knowledge due to his ignorance of the law or because he failed to make further enquiries or seek advice

• Objective test – constructive knowledge includes knowledge which the reasonable man in the same circumstances might reasonably have been expected to acquire from facts:

  • Observable or ascertainable by him or

  • Observable or ascertainable by him with the help of medical or other appropriate expert advice which it is reasonable for him to seek

  • BUT a person shall not be fixed under this subsection with knowledge of a fact ascertainable only with the help of expert advice so long as he has taken all reasonable steps to obtain (and where appropriate, to act on) that advice

• The claimant can be fixed with constructive knowledge of facts which his SOLICITOR ought to have acquired – Henderson v Temple Pier Co Ltd [1998]

Summary for solicitor

• Ask the claimant what he knew about the injury he suffered

• Add any knowledge about the injury which may be imputed to him under s. 14(3)

• Ask whether a reasonable person with that knowledge would have considered the injury sufficiently serious to justify his instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment

THE COURT’S DISCRETION TO OVERRIDE THE LIMITATION PERIOD

• The claimant should take the following action:

  • Issue proceedings on a pre-emptive basis

  • Draft and issue claim form NOW

  • 4 months to investigate further

• Under s. 33(1) Limitation Act 1980, the court has a wide and unfettered discretion to disapply the 3-year limitation period if it appears to the court that it would be equitable to allow an action to proceed having regard to the degree to which:

  • The provisions of s. 11 or 11A or 12 of prejudice the plaintiff or any person whom he represents AND

  • Any decision of the court under this subsection would prejudice the defendant or any person whom he represents; the court may direct that those provisions shall not apply to the action, or shall not apply to any specified cause of action to which the action relates

• The court will have regard to the following factors under s. 33(3) – apply to the facts

  • Length of and reason for claimant’s delay

    • Any mitigating factors?

  • Extent to which any delay has made evidence less cogent

  • Conduct of the DEFENDANT after the cause of action arose

  • Duration of any disability of the claimant arising after the cause of action

  • Extent to which the claimant acted promptly and reasonably once it was known that a claim was capable of being made

    • Would need to put it into context

  • Steps taken by the claimant to obtain medical, legal or other expert advice

    • Explain and date each step taken by the claimant

DEALING WITH LIMITATION ISSUES IN PRACTICE

Step 1: Initial interview: Has the limitation date expired? If yes – step 2. If no – step 3

Step 2: Can the claimant rely on a later date of knowledge of s. 33?

• If yes, notify defendant and issue the claim form without further delay

  • The claimant will want to rely on actual knowledge (as late as possible) and the defendant will want to push for an early date based on constructive knowledge)

• When did the claimant ‘know’ or when should he have known he had attributable, significant injury? Are we within 3 years of THAT date?

• If limitation looms, issue protective proceedings (or enter standstill agreement)

  • Address limitation issue in particulars of claim – e.g. a statement that claimant relies on a later date of knowledge, with date stated (because CPR 16.4(a) states the particulars of claim should contain a concise statement of the facts on which the...