Time Limits and Compensation | Brain and Head Injuries | Bolt Burdon Kemp Time Limits and Compensation | Brain and Head Injuries | Bolt Burdon Kemp

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Brain Injury

Personal Injury and medical negligence claims time limits

Making a claim when you are recovering from an injury may not be at the forefront of your mind, but there are time limits that apply to negligence claims. It is important that you are aware of the correct time limit that applies to your claim and they are explained in more detail below.

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To protect your right to make a claim for personal injury compensation or medical negligence claims, a formal document called a Claim Form must be issued at court within strict legal time limits. Missing these time limits is serious – it could result in you losing the right to make a claim.

For accidents in England and Wales, the Limitation Act 1980 sets out the specific time limits within which the Claim Form must be issued to protect your right to make a personal injury or medical negligence claim. Issuing the Claim Form starts court proceedings in your case.

If you think that you may have a claim for compensation, contact our specialist solicitors who will advise you about your claim and discuss the time limits that apply.

Time limits for claims by adults

As a general rule, if you are an adult, your Claim Form must be issued in the High Court or the County Court within three years of the date that you were injured, excluding the date on which the injury occurred. In other words, the Claim Form must be lodged at the court on or before the third anniversary of the date that you sustained the injury.

If the third anniversary falls on a day on which the court is closed, the Claim Form can be lodged at the court on the next day the court is open, but it is never advisable to leave it this late.

What if more than three years has passed since the incident?

If you became aware at a later date that you sustained an injury that may have been caused by someone else’s negligence, the Claim Form must be issued in the High Court or the County Court within three years of your ‘date of knowledge’.
Establishing the ‘date of knowledge’ is a legal test and can be uncertain and complicated. In a personal injury claim caused by an accident, this rule usually will not apply because it would have been obvious that you sustained an injury and that it might be someone else’s fault.

However, in a medical negligence claim, you may not have any idea that your treatment was negligent, or that anything was amiss, until much later.

In general terms, the ‘date of knowledge’ is the date when a reasonable person in your situation would first have realised that they had suffered injury as a result of substandard medical treatment. The ‘date of knowledge’ is defined by law and is the date when a reasonable person in your situation would first have had knowledge –

  1. that your injury was significant; and
  2. that your injury was either totally or partly caused by an act (or a failure to act) which you believe was negligent; and
  3. of the identity of the person (or organisation) who you believe was negligent.

It is important to note that the test asks when ‘a reasonable person’ should have realised these things, not the claimant themselves. This means that sometimes the court will say that a person should have known they had a possible claim, even if they did not actually realise it.

There is often argument about when a person has ‘knowledge’, and you should obtain legal advice as soon as you think you may have a claim.

Time limits for claims by children

If the claimant was under the age of 18 when the accident occurred, the Claim Form must be issued in the court within three years of the claimant’s 18th birthday, i.e. the claim must be issued by their 21st birthday.

Failure to comply with the above time limits could result in you losing the chance to claim compensation.

It is always best to see a specialist solicitor as soon as possible after your accident or injury. They will advise you on the time limits that apply to your claim and should ensure that they are complied with, protecting your right to make a claim. Acting swiftly will also mean that your recollection of events will still be fresh. The quicker you are able to act, the easier it will be to gather evidence and locate witnesses which will help strengthen your claim.

Can the time limit to claim be extended?

Sometimes the court will agree to extend the time limit if it has been missed. This will allow you to bring a claim even if the time limit has expired. If the defendant objects to the claim being brought outside the time limit, then you will need to make what is known as a “Section 33 application” to ask the court to permit the claim to proceed.

The court will need to be persuaded that missing the time limit has not made it more difficult to have a fair trial and it will consider whether the decision is fair to both parties.

In most cases it will not be possible to extend time, because the court will say that the delay has made it unfair on the defendant. When an application is made to extend time, the court will look at a number of factors before deciding whether to allow the claim to proceed:-

  • the amount of time that has passed, and the reasons for the delay
  • the effect that the delay has had on the evidence that the court will have to consider at trial. For example, documents may have been destroyed, or witnesses may have died or moved abroad. These factors will be very significant
  • the conduct of the defendant in dealing with the claim, including whether the defendant cooperated with the claimant’s requests for information
  • if the claimant was under a “disability” – for example if they were in a coma, or suffered severe brain injuries – then the court will take this into account
  • whether the claimant acted promptly once it became obvious that there was a possible claim
  • the steps the claimant took to obtain medical, legal or other expert advice, and the advice they received. This might be relevant if, for example, the claimant was told by a doctor that, in his or her view, there was nothing wrong with the treatment and so the claimant was discouraged from bringing a claim

There may be circumstances where it is possible to bring a claim if more than three years has passed since your accident. Let our specialist solicitors assess your claim and advise you about the time limits that apply to your claim.

What if I was not advised about the time limit?

If you did contact a solicitor whilst you were in time to bring a claim and were not properly advised about time limits, and you are now out of time to bring a claim, you may have a professional negligence claim against the solicitor that you consulted.

When time limits do not apply

The time period may not start to run at all if a person with a claim lacked ‘mental capacity’ to bring a claim at the time that they had the accident or injury, or before they acquired ‘knowledge’.

Capacity’ to bring a claim, means that the person must be capable of understanding the consequences of decisions they make about the claim, even if the decisions are very bad ones.

If the person does not have this capacity at the time, then the three year time limit that usually applies to adults will not start until that person regains the ability to grasp decisions, and often they never will.
It is important to note that if a person loses their capacity to make decisions after the accident, or after they acquired ‘knowledge’, then the time period will not stop running.

It is crucial not to assume that this will apply to your case and to seek advice from our specialist solicitors on the time limit that applies to your case as soon as possible.

Get in touch online or call 0203 7734 238 for advice you can trust from Bolt Burdon Kemp’s specialist compensation claim solicitors.

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