There are time limits for starting court proceedings in claims for damages for personal injury claims (including Medical Negligence) – miss them and you’re usually timed out – statute-barred – and prohibited from pursuing your claim.
The Three-Year Rule
Here’s the basic rule that is in section 11 Limitation Act 1980: that, if it is not settled, a claim must be issued in court within 3 years of either:
The date of the accident or negligent act, or if later:
The ‘date of knowledge’ – ie. the date when the Claimant (person claiming) became aware (or could reasonably be expected to have been aware) of all the following 3 facts:
- The identity of the potential Defendant (the person or organisation that the claim is to be against); and
- The Claimant has suffered a significant injury (generally serious enough to get medical advice); and
- The injury is attributable to something that the Defendant did or failed to do.
Note that it is irrelevant whether the Claimant knew or believed that there might be a claim as a matter of law.
Even where the 3 years have passed, the court has a discretion to allow the claim to proceed in certain circumstances, but usually only where the evidence of what’s happened is still readily available – for example in medical records, X-rays, scans, CTG traces.
Fatal Accidents
Where the claim is about negligence before (and possibly causing) a person’s death, the executors/administrators of the deceased’s estate must commence proceedings generally within 3 years of the day of the death (though there are some wrinkles to this rule too). Effectively, if the negligence was within 3 years before the death, the estate and/or dependants of the deceased have another 3 years after the death to start proceedings.
But there are two very important, but often overlooked, exceptions to the general 3-year rule.
Children
Where the Claimant is a minor, the 3-year period does not start until he/she reaches 18; thus the Claimant has until his/her 21st birthday to issue proceedings.
Mental Incapacity
The rules relating to persons under a mental disability are different and more complex. Broadly speaking, if at the time of the negligence the Claimant does not have capacity, periods of time when the Claimant does not have sufficient mental capacity to instruct solicitors and understand their advice are ignored when calculating the 3 years. (Note that the rules are different if the Claimant loses capacity some time after the negligence).
Therefore some people may never have sufficient capacity for the 3 year period ever to commence.
I often act for victims of obstetric negligence – children who have suffered brain damage because the birth was not competently managed by the maternity unit staff. Sometimes the parents contact my firm within a few weeks or months of the birth, but often it may be years – or even decades – later.
Apart from difficulties over the evidence (eg. are the medical records still available?) from a time limits point of view, there will be no problem if the child is under 21. But even if the potential Claimant is over 21, if he/she lacks mental capacity to instruct us in the claim, the time limit won’t apply.
So it’s always worth asking us whether a claim is still in time.
Get in touch with Jackson Lees Solicitors to discuss your Medical Negligence claims. Please click here for a call back or message us your enquiry.