April 6, 2021
Claims for personal injury or clinical negligence are subject to the Limitation Act 1980. This means that any claim must be issued with the court within three years of the date of the accident or the date of knowledge of the negligence. There are few exceptions to this rule, so it is important to seek legal advice as quickly as possible. Claims which are brought out of time are rarely permitted to continue, meaning those claimants lose their right to make a claim.
In real terms, that means that even if you have a strong case and would be entitled to compensation, you will not be allowed to make a claim if limitation has expired!
Three years may sound like a long time, but it can go very quickly, especially when considering the evidence that needs to be obtained. For example, it can take a significant amount of time to obtain witness statements, medical records, expert medical reports and police investigation reports. There are also prescribed steps in the Civil Procedure Rules to be taken before action is commenced. Therefore, the sooner you seek legal advice, the better!
Date of knowledge for personal injury and clinical negligence claims
For road traffic accidents, slips and trips, and other claims where the negligence is easy to identify, the date of knowledge will be the same as the date of the accident.
However, what of claims where a diagnosis was missed or delayed? What if you have surgery and then find out years down the line that something went wrong?
In many clinical negligence cases, the date of knowledge will be some time after the negligent act. The Limitation Act 1980 provides for these cases and the clock will start to run from the date of the claimant’s knowledge of the negligence.
Limitation for Children cases involving personal injury and clinical negligence claims
The situation for children is different. Child claimants are unable to bring the claim themselves. They, therefore, need someone to act on their behalf throughout the litigation process, known as a Litigation Friend.
Limitation for child claims doesn’t start to run until their 18th birthday. They, therefore, have until their 21st birthday to bring a claim. However, we would always recommend making the claim as soon as possible to ensure that the evidence can be considered contemporaneously.
Before any settlement can be agreed upon for a child, it must also be approved by the Court in an Infant Approval Hearing.
Capacity considerations in personal injury and clinical negligence claims
Claimants who lack capacity also have different rules. If the claimant lacked capacity at the time of the accident / alleged negligence, the clock will not start to run until they regain capacity. In some cases, the claimant will never regain capacity and limitation will therefore be ongoing. However, it is recommended that personal representatives seek legal advice at the earliest opportunity.
Where the claimant lost capacity after the accident, limitation continues to run as normal and will expire after 3 years.
Death affecting personal injury and clinical negligence claims
Where a claimant has sadly died, the limitation clock is essentially reset. It will start to run again from the date of death or the date of knowledge of the death. This ensures that the Estate of the deceased person is able to bring a claim on their behalf.
If you are thinking about making a claim or would like to know whether you have a claim, it is important to seek legal advice as soon as possible. Your case can then be thoroughly investigated without the worry that limitation will expire.
Don’t leave it to the last minute as you may find that you will be prevented from bringing your claim at all.
For further information/advice then please do not hesitate to contact our Personal injury/Clinical Negligence Lawyers on 0800 158 4147 or firstname.lastname@example.org