Insights

Limitation in Clinical Negligence Cases

Introduction

The Limitation Act 1980 is the key source for prescribing when a claim or cause of action can be brought by. In contract law, the limitation period is six years from the date of the breach of contract. Conversely, in tort law and specifically in the context of clinical negligence claims, the limitation period is three years from the date on which the negligence occurred or the injured person’s date of knowledge of the negligence. This article serves as a brief guide to limitation in clinical negligence claims.

The Limitation Act 1980

Section 11 of the Limitation Act 1980 prescribe that an action for damages, i.e. compensation, for personal injury shall not be brought after three years from the date on which the cause of action accrued. Or, three years from the date of the injured person’s knowledge of the action accrued.

In circumstances where the injured person unfortunately passes away before the conclusion of the limitation period, then the action to raise a claim is preserved for their Estate. This is under the authority of the Law Reform (Miscellaneous Provisions) Act 1934, section 1. As a result, the limitation period is further extended by three years from the date of death, or alternatively the date of knowledge of the deceased’s representative.

The limitation period in respect of personal injury claims for a child does not begin until they reach the age of eighteen when they are able to pursue a claim themselves. The limitation period is still three years but is not trigged until the eighteenth birthday, in other words until the Claimant becomes twenty-one years of age.

Further, case law affirms that the date a claim is brought is considered the date the claim is received by the Court, not the date on which the claim is issued by the Court.

Knowledge

Section 14 of the Limitation Act 1980 specifies the following in relation to the date of knowledge and what the Claimant is expected to have knowledge of:

  • That the injury is ‘significant’; and
  • That the injury is ‘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’ is specified; and
  • If the negligence is attributed to a third party who is not the Defendant, identity of that person and the additional facts supporting the bringing of an action against the Defendant and knowledge that any acts or omissions did or did not, as a matter of law, involve negligence, nuisance or breach of duty is irrelevant.

Insofar as ‘significance’ is concerned, the interpretation of this is subjective. Though, section 14(2) of the Limitation Act 1980 specifies that ‘if the person whose date of knowledge is in question would reasonably have considered it sufficiently serious to justify his instituting of proceedings…’ Therefore, the standard, though subjective, ought to be measured against whether the significance is ‘sufficiently serious’ to justify legal action.

The Court’s Discretion

If you, for whatever reason, are unable to issue a Claim Form prior to the prescribed limitation deadline, then you may seek to rely upon the Court’s discretionary power to exclude the limitation period and allow your claim to proceed.

Section 33 of the Limitation Act 1980 highlights that if the Court considers that it would be equitable, i.e. fair, to allow an action to proceed, the Court may use its discretion to allow the action to proceed.

A key factor the Court will consider is whether its positive use of its discretion will prejudice either the Claimant or the Defendant.

Section 33(3) of the Limitation Act 1980 prescribes the following factors the Court will consider in the exercise of its discretion:

  • The length of, and the reason for, the delay;
  • The extent to which, regarding the delay, the evidence adduced is likely to be less cogent that if the action had been brought within the time allowed by Section 11 or 12 of the Act;
  • The conduct of the Defendant after the cause of action arose, including the extent to which he responded to requests reasonably made by the Claimant for information or inspection for the purpose of ascertaining facts which were or might be relevant to the Claimant’s action against the Defendant;
  • The duration of any disability of the Claimant arising from the date of the accrual of the cause of action;
  • The extent to which the Claimant acted promptly and reasonably once he knew of the injury/circumstances might give rise to action for damages; and
  • The steps, if any, taken by the Claimant to obtain medical, legal or other expert advice and the nature of any such advice he may have received.

It is important to note that the law on relief from sanctions (Denton Principles) do not apply to the interpretation of section 33 of the Limitation Act 1980. The Court’s discretion here is unchanged and the standard on which it is judged is one of balancing prejudice. Thus, the burden is upon the Claimant to demonstrate any prejudice that they would suffer would override the prejudice suffered by the Defendant. For the Defendant, the burden is to demonstrate that evidence adduced or likely to be adduced would be less cogent, i.e. convincing, because of the delay.

If you have any questions regarding the standard of Limitation Act 1980 on personal injury claims or the process of making a clinical negligence claim, please contact us to gather support from our solicitors.

*This article is not legal advice but provides a general overview. The specific details of your case will determine the best course of action.