Our first discussion with a client making an enquiry relating to a potential clinical negligence claim will include establishing the date as to the start of the limitation period and, crucially, the date of expiry.
General Rule
Court proceedings (the issue of a Claim Form in the High Court or County Court) must be started no later than 3 years from either:
- The date of the accident or negligent act; or if later;
- The date when you should have been aware of all the following three facts;
- The identity of the potential Defendant;
- That you have suffered a significant injury;
- That the injury is attributable to the act or omission of the Defendant.
If proceedings are not started within the three year period, the claim will be “statute barred” and cannot be pursued through the Court except in certain exceptional circumstances. There is a substantial amount of work that needs to be done prior to the issue of proceedings and it is essential therefore that the advice of a solicitor be sought as soon before the expiry of the limitation period as reasonably possible.
Children
A child (under the age of 18) is considered to be under a “legal disability”. Limitation periods do not begin to run against a child until the child dies or comes of age. Therefore limitation expires 3 years after the child reaches the age of 18, i.e. their 21st birthday.
Mental Capacity
If a person is under a disability of unsound mind and therefore incapable of managing and administering his property and affairs by reason of mental disorder within the meaning of the Mental Health Act 1983 (but not necessarily sectioned).
Limitation periods start to run in relation to a claim for personal injury 3 years from the date when a Claimant ceases to be under a disability or dies (whichever is the sooner).
If a person is of sound mind when the right of action accrues, but subsequently becomes of unsound mind, the incapacity does not prevent the ordinary limitation period from running.
Death Of Claimant/Fatal Accidents
Death of Claimant
If the injured person dies before the expiry of the 3 year period applicable to an action by him, the limitation period applicable to an action on behalf of his estate is 3 years from the date of the death or from the date of the personal representative’s knowledge, whichever is the later.
If it can be said that the claimant had knowledge of a claim for more than 3 years prior to death then limitation could have expired.
The limitation period for bringing a claim on behalf of the dependants under the Fatal Accidents Act 1976 is 3 years from the date of death or from the date of knowledge of the person for whose benefit the action is brought, whichever is the later. (The rules in relation to children and mental incapacity equally apply here).
Overriding The Time Limit
The Court has a discretionary power to override the time limit where it is considered reasonable to do so (s.33 Limitation Act 1980). This gives the court a general discretion to consider the merits of personal injury cases begun outside the limitation period. However, this is rarely invoked and it is the Claimant who must show why the limitation period should not be applied.
How we can help
For further information about any Clinical Negligence matter, please click here for a call back or message us your enquiry.