15 August 2023
Are you considering approaching us to bring a claim for Clinical Negligence?
If you are, it is vital to be alert to the time limits for bring a claim. The deadlines are referred to as the ‘limitation period’.
The limitation period is governed by The Limitation Act 1980. Generally speaking, the limitation period for a medical negligence claim is 3 years from the date of the alleged negligence. This means that the claim must be started at Court within that 3-year period, after the which the claim would be statute barred (which means that it is unable to be pursued), except for with the permission of the Court. There are some circumstances where the 3-year time period will not start to run until later, as set out below.
Date of Knowledge
Section 14 of The Limitation Act 1980 allows for the circumstances whereby the limitation period does not start to run until the ‘date of knowledge’. The most common example of where date of knowledge would apply is in situations where the negligence was not known of until a later date.
For example, when dealing with a delay in diagnosis, you would not be aware of there being a delay until such a time as the diagnosis is actually made. As such, it would seem unfair for the date of the negligence i.e. the point at which the diagnosis should have been made but was not, to trigger the running of the limitation period. Instead, it would be argued that the limitation period would only start to run at the point of actually being made aware of the diagnosis.
The Limitation Act sets out the criteria for you to be deemed to have knowledge, which is when you first had knowledge of the following facts:
1. That the injury in question was significant; and
2. That 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
3. The identity of the defendant; and
4. If it is alleged that the act or omission was that of a person other than the defendant, the 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.
Children:
The limitation period for any claim brought by a minor (those aged under the age of 18) does not begin to run until their 18th birthday and the limitation period would then expire on their 21st birthday. A claim for a child can be brought by a ‘Litigation Friend’, who is often a parent or close relative, at any point prior to the child’s 18th birthday. Once the child turns 18, they can bring a claim in their own right for any clinical negligence suffered, so long as a Litigation Friend has not previously made and concluded a claim.
Mental Capacity:
If an individual is classed as lacking mental capacity, where they are not capable of managing their own property and affairs often due to a mental disability, the limitation period can be affected in multiple ways.
Where an individual does not and has never, from the date of injury/knowledge, had capacity then the limitation period does not begin to run until the individual regains capacity. An individual may never regain capacity in which case the claim would be brought by a Litigation Friend (like in child claims).
If however an individual had capacity at the time of the negligence or the date of knowledge but later loses capacity, the limitation period is still running. The rule is that, once the limitation period has started, it never stops. It therefore cannot be argued that limitation period is suspended or stopped running by the period of incapacity.
Death:
If the injured person unfortunately passes away, then the action is preserved for their Estate under Section 1 of the Law Reform (Miscellaneous Provisions) Act 1934. The limitation period is effectively reset, so that the limitation period is deemed to run for three years from the date of death, provided the limitation period from injury or knowledge has not expired. The intention of this is to ensure that the Estate is able to bring a claim on behalf of the Deceased.
Agreed Limitation Extension
It is also worth noting that an extension of the limitation period can be agreed with the Defendant(s) to the claim, so long as this is agreed prior to the limitation period expiring.
It is a huge risk if the limitation period expires, or a claim is not started at Court during the relevant time limit, as the Court may not allow you to bring a claim. There is a rare circumstance where the Court may allow the 3-year limitation period to be extended at their discretion, provided they have been given exceptionally good reasoning for the delay but this does not happen often.
Whilst 3 years may seem like a long time, it is best not to delay contacting us, even if the person for whom the claim would be brought may not have capacity. The team at Williamsons Solicitors are experienced in assessing potential claims and would be available to answer any questions you may have.
If you, or any of your family, have concerns in relation to medical treatment you received or you have questions in relation to time limits, please contact Williamsons Solicitors on 01482 323697.
