Personal Injury - I Think That I Might Have a Claim …. How Long Do I Have To Act?
Most people are probably vaguely aware that there is a time limit within which they can potentially sue somebody for personal injury but not so many people are aware what that limit is.
Limits such as these are known as "Limitation Periods". They are considered desirable as they provide some certainty for people who may be sued ('Potential Defendants'). After a certain period of time Potential Defendants can rest assured that they cannot be sued. Such Limitation Periods also have the advantage of avoiding decisions being made when material facts have been lost in the mists of time.
This area of law is currently under review with a radical overhaul on the horizon so it would, therefore, seem a good time to review the current position and the proposed reforms.
Probably the most talked about forms of claim recently have been those for personal injury. Apart from matrimonial matters this is probably the most commonly encountered contentious legal matter for the average person on the street. It is important to appreciate, therefore, that, in the majority of personal injury cases, legal proceedings must be commenced no later than 3 years after the date of the accident from which the injury arises. That is not to say, however, that you should simply wait until a week before the third anniversary of the accident and then think about contacting a solicitor. A vast amount of work needs to be undertaken prior to proceedings being issued in the Court and there are also set Court protocols that must be adhered to. Also, from a practical point of view, the longer one leaves it before consulting a solicitor then the harder it will be to recollect events and, therefore, evidence. Witnesses may disappear, documents may be lost, the possibilities are endless. It is therefore important to consult a solicitor quickly after any accident where you are not at fault.
On some occasions an injury may not come to light until some time after the event that caused it ("the act of negligence"). An obvious example of this would be somebody who later in life suffers illness as a result of asbestos in the workplace. In situations such as this, where the illness is 'latent', the limit for bringing a claim may be extended to three years after that person ('the Claimant') acquires what is known as the 'relevant knowledge'. So, what constitutes 'relevant knowledge'? Broadly speaking, this can be broken down into 3 parts. Firstly, the Claimant must know that they have suffered 'significant damage'. This is defined as damage that is 'more than trivial' and in each case this will be decided on the damage in question. The second piece of knowledge that must be acquired is that there is a cause and connection (known as 'causal link') between that 'significant damage' and the 'negligent act' of somebody else ('the Defendant'). This negligent act is established by a two-stage test. Firstly it must be established that somebody owes you a 'duty of care'. In road traffic accidents this is usually simple to establish but in other circumstances it can be more complicated. Once the duty of care has been established then it must be proved that it has been 'breached'. This could be by a positive action or by a failure to do something (an 'omission'), for example a failure to check the brakes of a car at a garage. If you have knowledge of significant damage and of a 'causal link' then the final piece of knowledge required is the Defendant's identity.
So, in summary, once you know that you have suffered damage (i.e. an injury) because of somebody else and you know who that person is the 'clock will start ticking'. It is also important to realise that you cannot 'stop the clock' by saying that although you had the 'relevant knowledge' you did not know that you had a legal right to sue. The Court will not view this as an excuse to sue outside the Limitation Period. It should also be noted that there is currently a final time limit (known as a "long stop") of fifteen years after the accident regardless of any of the above. If you do feel that you may have a claim under similar circumstances to these it would certainly be worthwhile contacting a solicitor as soon as possible.
As mentioned above, the law regarding Limitation Periods may well soon be changing. In 2001 the Law Commission published a report on its findings on the matter. These changes as they currently stand will not greatly affect Personal Injury claims, however. They do extend the 'relevant knowledge test' described above to all areas of law as well as personal injury other than land law.
They also propose a uniform ten-year "long stop" period for all areas of law. As mentioned above, in personal injury this is currently fifteen years. Under the new proposals in personal injury cases only, however, the Court would have the discretion to disallow this ten-year period and allow people to sue after it had expired. It is likely that this discretion would only be used in extreme cases, however, and, when the law comes into force, we would certainly advise our clients not to rely upon it. These proposals will, however, hopefully provide justice for those who have injuries whose symptoms do not manifest themselves until many years after their initial injury.
The Limitation Bill which incorporates the above proposals has not yet been formally passed into law and it still may be some time before this occurs, depending upon Parliamentary time. For the time being, therefore, it is important to consider the time limits described under the current legislation above.
To summarise, if you have suffered an injury and suspect that you may have a claim then you should obtain legal advice immediately. At best, delay might weaken your claim, at worst it might extinguish it completely.
This article gives a general overview only and the legal position at the time of writing this article. It cannot be relied upon in any particular case. Specific legal advice must always be considered to include consideration as to whether the legal position contained in this article has changed since going to print. For further information and advice, please contact Tim Dixon or Nita King on 01793 527141 or alternatively by email on Tim.Dixon@lemon-co.co.uk or Nita.King@lemon-co.co.uk.
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<p><strong><a href="http://www.lemon-co.co.uk/article_limitation-periods.php">Personal Injury - I Think That I Might Have a Claim …. How Long Do I Have To Act?</a></strong><br />
Most people are probably vaguely aware that there is a time limit within which they can potentially sue somebody for personal injury but not so many people are aware what that limit is. ...</p>
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