A limitation period is a fixed period of time during which a formal legal claim should be commenced. Limitation periods are fixed under the Limitation Act 1980. If proceedings are not started within the limitation period prescribed by the Act, the claim is likely to be time barred and the claim cannot be brought.
Limitation periods are important for public policy reasons, for instance, by providing certainty to the potential parties to litigation. There is a limitation period in most types of litigation, including personal injury claims.
A personal injury claim is a legal claim for compensation for personal injury, harm, illness or condition. To succeed, the claimant must prove on the balance of probability that the harm or injury suffered was a direct result of the negligence or breach of duty of the defendant.
The limitation period for personal injury claims is generally three years. This means claims must be commenced in the courts within three years from the date on which the accident or incident occurred in which the injuries were caused; or three years from the date of ‘knowledge’. In most cases, it will be clear when the personal injuries were caused.
Where it later comes to light that a claimant that can make a claim, this is where the ‘date of knowledge is relevant’. The date of knowledge under the 1980 Act is the actual date when the claimant became aware of the following:
These will be questions of fact, and your knowledge will include anything you may have reasonably expected to discover or determine. This may include the help of your doctor. For instance, you may have sustained an injury or contracted a condition or disease that does not become manifest until sometime after the actual date of the incident. In other cases, it may be the cumulative effect of, for instance, consistently poor working conditions. You will need to take medical advice as to what may have caused the condition, and when.
The law requires that you must be able to show knowledge of the ‘essence’ of the act or omission of the third party which is alleged to have caused the injury or condition.
In the case of children who have suffered harm or personal injury, the three-year limitation period does not start until the child’s eighteenth birthday. A child can therefore start a formal claim for personal injury compensation up until the age of 21 – even if the injuries occurred during childbirth.
In practice, it is still advisable to start a claim as early as possible while the evidence is fresh. However, where children are concerned it can take many years before a child is fully recovered. This exception to the 3-year limitation period is crucial in allowing plenty of time for the true extent of an injury to a child to be known.
Individuals who are being treated under the Mental Health Act 1983 also have an extended time in which to bring their personal injury claim. Similarly, those rendered of unsound mind because of the accident or incident complained of have an extended time in which to bring their claim. The 3-year limitation period will not start to run until they have recovered from their mental disability and regained their mental capacity.
If the individual dies within the three-year limitation period, this period is extended to three years from the date of their death. This makes it possible for the claimant’s estate to claim on their behalf.
A claimant is not prevented from making a personal injury claim simply because it is ‘out of time’, however, normally the defence would apply to have the claim struck out on the basis that it is time barred. That said, the Court has the discretion to extend the three-year limitation period in cases that are not covered specifically by the statutory exceptions above.
It is rare for the court to allow a claim to continue if the limitation period has expired. To exercise its discretion in the claimant’s favour, the court will have to be satisfied that there are very good reasons to do so, for instance, the claim is a very good one and liability is undisputed by the defendant. The conduct of the parties and the reasons for the delay will be some of the factors taken into account by the court.
Nicola is a dual qualified journalist and non-practising solicitor. She is a legal journalist, editor and author with more than 20 years' experience writing about the law.
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