The Limitation Act 1980 allows a Claimant or their representative three years to bring Court action for a claim for clinical negligence. This is called the limitation period. Court proceedings must be issued by this date otherwise the Claimant becomes statute barred from pursuing the claim.
If a claim is statute barred, the Claimant may ask the court to disapply the limitation period. The Court will have regard to all the circumstances of the case in exercising its discretion to disapply the limitation period. The Court will consider whether the Claimant can show compelling reasons for the delay, the extent to which the Claimant acted promptly and reasonably once he/she knew that the act or omission of the Defendant might be capable of giving rise to an action for damages, the availability of evidence in support of the claim, whether it is still possible to have a fair trial and the Court must be satisfied that both the Claimant and Defendant will not be prejudiced by an extension of time.
When does the three year limitation period start?
The limitation period runs from the date of the alleged negligence, or from the date on which the Claimant should have started to investigate the alleged negligence. The general rule is that the limitation period will commence from the date of the accident/injury, or from when the Claimant knew or ought to have known that he/she suffered an injury as a result of an act or omission of the Defendant.
However, there are circumstances where the three year limitation period will not commence until a later date.
Exceptions to the three year limitation period
The three year limitation period for a child does not start until the child reaches the age of 18. This means that the limitation period expires on the child’s 21st birthday.
Where the Claimant lacks capacity prior to or from the date they were injured, the limitation period will not begin until he/she regains capacity. If the Claimant does not regain capacity, the three year limitation period will not start and a claim can be brought at any time by a Litigation Friend.
If the injured person loses capacity after they are injured, the limitation period will start from the date of the negligence or the date of knowledge.
Under the Fatal Accidents Act 1976, fatal accident claims must be started at Court within three years of the date of death or within three years from when the family should have had reasonable knowledge that the death was linked with negligent treatment. An action may not be brought if the death occurred when the injured person could no longer maintain an action and recover damages (whether because of an expired limitation period or for any other reason). In these circumstances the court is not entitled to exercise its discretion to disapply the relevant time period.
As discussed above, the limitation period can be complicated to assess and it is therefore imperative that you seek legal advice as soon as you suspect that you may have a potential claim for clinical negligence. Waldrons Solicitors are experienced in assessing potential claims and the intricacies of limitation issues. Please contact us should you have any questions and to discuss your potential claim for clinical negligence.
Sumaya Ali, Trainee Solicitor