Limitation in clinical negligence – a summary guide

This is the third article in a three-part series looking at limitation arguments in clinical negligence claims. The first two articles considered case law and this article will provide an overview of the applicable law.

The first two articles can be found here:

Limitation – Mossa v Wise

Limitation arguments – how hard can it be?

A different limitation period for tort and contract

  • In breach of contract claims, the cause of action accrues on the date of the breach of contract. The limitation period is six years from that date and it is important to note the possibility for the limitation period to have expired for a claim in negligence, but not under contract law. With the increase in private medical treatments this may become more of a hot topic in the years to come.

The Limitation Period

  • The Limitation Act 1980 applies. Sections 3 and 4 state an action for damages for personal injury shall not be brought after three years from the date on which the cause of action accrued, or the injured person’s date of knowledge, whichever is the later.
  • If the injured person dies before the expiration of the limitation period then the action is preserved for their Estate under Section 1 of the Law Reform (Miscellaneous Provisions) Act 1934. The limitation period is then extended to three years from the date of death or the date of the Personal Representative’s knowledge, whichever is the later.
  • The limitation period for any claim brought by a minor (those under the age of 18) does not begin to run until their 18th
  • Case law confirms that a claim is brought on the date the Claim Form is received by the Court, not the date the Court staff issue the Claim Form.

Date of knowledge (Section 14 of the Act)

  • The date on which he 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.
  • Whether an injury is significant is subjective. Section 14(2): “…. if the person whose date of knowledge is in question would reasonably have considered it sufficiently serious to justify his instituting proceedings …”
  • Section 14(3) does introduce some objectivity, stating: “…includes knowledge which he might reasonably have been expected to acquire from facts observable or ascertainable by him; or …. ascertainable by him with the help of medical or other appropriate expert advice …”
  • The Act does however go on to state that “a person shall not be fixed under this subsection with knowledge of a fact ascertainable only with the help of expert advice so long as he has taken all reasonable steps to obtain (and, where appropriate, to act on) that advice.

The Court’s power to exclude the limitation period (Section 33 of the Act)

  • If a prospective Claimant has not issued a Claim Form in time, then he may seek a discretionary exclusion of the limitation period.
  • Section 33(1) states that if it appears to the Court that it would be equitable to allow an action to proceed, the Court may direct that those provisions shall not apply.
  • When applying its discretion, the Court must have regard to the degree of prejudice which suffered by the Claimant and the Defendant.
  • Section 33(3) states that the Court shall have regard to all the circumstances of the case and in particular to:
    1. The length of, and the reasons for, the delay.
    2. The extent to which evidence adduced is likely to be less cogent than if the action had been brought within the time allowed by Section 11 [or Section 12].
    3. The conduct of the Defendant after the cause of action arose, including the extent to which he responded to requests reasonably made by the Claimant for information or inspection for the purpose of ascertaining facts which were or might be relevant to the Claimant’s cause of action against the Defendant.
    4. The duration of any disability of the Claimant arising after the date of the accrual of the cause of action.
    5. The extent to which the Claimant acted promptly and reasonably once he knew injury/circumstances might give rise to an action for damages.
    6. The steps taken by the Claimant to obtain medical, legal or other expert advice and the nature of any such advice he may have received.
  • As per our first two notes, the law on relief from sanctions does not apply to the interpretation of Section 33. The Court’s discretion remains unfettered and requires a balance of prejudice. The burden is on the Claimant to show any prejudice that they would suffer would outweigh the prejudice suffered by the Defendant.  The burden is on the Defendant to show that evidence adduced or likely to be adduced would be less cogent because of the delay.

Revising ongoing claims after the limitation period has expired

  • Section 35 of the Act sets out the rules for adding or substituting parties to an ongoing claim, as well as the addition or substitution of a new cause of action.
  • The Court shall not allow a new claim in respect of the original action after the expiry of any limitation period. There are however exceptions – Section 35(5) states:
    1. In the case of a claim involving a new cause of action, if the new cause of action arises out of the same facts or substantially the same facts as are already in issue on any claim previously made; and
    2. In the case of a claim involving a new party, if the addition or substitution of the new party is necessary for the determination of the original action.
  • The addition or substitution of a new party shall not be regarded as necessary for the determination of the original action unless either:
    1. The new party is substituted for a party whose name was given in any claim made in the original action in mistake for the new party’s name; or
    2. Any claim already made in the original action cannot be maintained by or against an existing party unless the new party is joined or substituted as Claimant or Defendant in that action.
  • These Rules also need to be read in conjunction with the relevant sections of the Civil Procedure Rules.
  • CPR 17.4 addresses amendments to statements of case after the end of a relevant limitation period. The Rules follow the same line as the Limitation Act, stating that the Court may allow an amendment:
    1. Whose effect will be to add or substitute a new claim, but only if the new claim arises out of the same facts or substantially the same facts as the existing.
    2. To correct a mistake as to the name of a party, where the mistake was genuine.
  • CPR 19.5 contains provisions about adding or substituting parties after the end of a relevant limitation period. It states the Court may add or substitute a party only if the relevant limitation period was current when the proceedings were started and the addition or substitution is necessary.
  • The addition or substitution of a party is only considered necessary if the Court is satisfied that:
    1. The new party is to be substituted for a party who was named in the Claim Form in mistake for the new party;
    2. The claim cannot properly be carried on by or against the original party unless the new party is added or substituted as claimant or defendant; or
    3. The original party has died or had a bankruptcy order made against him and his interest or liability has passed to the new party.
  • The Court will also be required to direct that Sections 11 or 12 of the Limitation Act shall not apply to the claim by or against the new party or that the issue of whether those sections apply shall be determined at trial.

Contribution claims and mental capacity

  • Where a person is found liable to a Claimant, they may seek a contribution from another party who is liable to the Claimant for the same damage [Section 1, Civil Liability (Contribution) Act 1978]. The limitation period for such claims is two years from the date the person seeking a contribution is held liable to the Claimant. That could be the date of a judgment (on quantum, not just liability for a sum to be determined) or the date the person agrees to make or makes payment, whichever is the earlier. The date therefore can run from the date of a settlement meeting rather than the Consent Order or Tomlin Order that followed the meeting.
  • The limitation period will not start to run if the Claimant does not – and has never had from the point the action accrued – capacity. However, if the Claimant has had capacity at any time since the action accrued then the limitation period had begun and could therefore have expired. If the Claimant loses capacity before the three-year limitation period expires, that does not stop the clock. The limitation period is not suspended although as per Section 33(3)(d) above, the duration of any disability of the Claimant arising after the accrual of the cause of action is a relevant consideration in the Court exercising its discretion to exclude the limitation period.

Conclusions

As you will have seen from this series there are a number of routes for Claimants in terms of limitation, and Defendants could be tempted to feel as if the system is weighted to allow claims to continue. However, this is arguably the outcome one would expect when a balance of the prejudices takes place, and particularly when preventing Defendants obtaining a “windfall” outcome of avoiding a claim compared to a Claimant potentially losing a right to seek a remedy as a result of a number of months/years on what is already an arbitrary number (3 years from date of knowledge).

Whilst the case law suggests difficulties it is always important to consider limitation carefully at the outset, and the evidence that might be required to show how the time period has impacted on the Defendant.

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