What is a personal injury claim?
A personal injury can be a physical or mental injury, illness or condition. A personal injury claim is a compensation claim that can be made where a personal injury is sustained as a direct result of the negligence or breach of duty of a third party.
What is a limitation period?
In most types of litigation, there is a fixed period of time during which a formal claim must be made. This is called the ‘limitation period’. If the claim is not made within the relevant limitation period, the claim is likely to be time barred under the Limitation Act 1980 meaning the claim cannot be brought.
Limitation periods are important for public policy reasons, for instance, by providing certainty to the potential parties to litigation.
What is the limitation period in personal injury claims?
The statutory rule (subject to exceptions) is that the limitation period for personal injury claims is three years. This three-year period runs from the date on which the accident or incident occurred in which the injuries were caused; or three years from the date of ‘knowledge’. In the majority of cases, it will be clear when the personal injuries were caused.
What is the date of knowledge?
In cases where the date of knowledge is relevant, the date of knowledge under the Limitation Act 1980 section 14 (1) is the actual date when the claimant became aware of the following:
- The injury in question is significant,
- The injury is directly attributable to the negligent acts or omissions, or breach of duty, of the other party, and,
- The identity of the defendant.
These will be questions of fact, and your knowledge will include anything you may have reasonably expected to discover or determine. This may reasonably include the help of your doctor. For instance, you may have sustained an injury or have contracted a condition or disease that does not become manifest until sometime after the actual date of the incident. You will then need to take medical advice as to what could have caused the condition, and when.
The question is: could you reasonably have ascertained the information under s14(1) so that the limitation period starts from your ‘date of knowledge’? You must be able to show knowledge of the ‘essence’ or the act or omission of the third party which is alleged to have caused the injury or condition.
How long do children have to make a personal injury claim?
In the case of children who have sustained personal injuries, the three-year limitation period does not start until the child’s eighteenth birthday. A child can therefore claim personal injury compensation up to the age of 21 – even if the injuries occurred during childbirth.
How long do individuals with a mental health condition have to make a claim?
Claimants who are being treated under the Mental Health Act 1983 also have an extended time in which to bring their personal injury claim. Similarly, those rendered of unsound mind because of the accident or incident have an extended time in which to bring their claim. The limitation period will not start to run until they have recovered from their mental disability and regained their mental capacity.
What happens on the claimant’s death?
If the claimant dies within the three-year limitation period, the three-year period is extended to three years from the date of their death. This makes it possible for the claimant’s estate to claim on their behalf.
Are there any other exceptions?
A claimant is not prevented from making a personal injury claim simply because it is ‘out of time’, however, normally the defence would apply to have the claim struck out on the basis that it is time barred. That said, the Court has the discretion to extend the three-year limitation period in cases that are not covered specifically by the statutory exceptions above.
It is rare for the court to allow a claim to continue if the limitation period has expired. To exercise its discretion in the claimant’s favour, the court will have to be satisfied that there are very good reasons to do so, for instance, the claim is a very good one and liability is undisputed by the defendant. The conduct of the parties and the reasons for the delay will be some of the factors taken into account by the court.