Please remember ‘Three is Key’!September 27, 2013
Please remember ‘Three is Key’!
People often get in touch with us about personal injury and/or clinical negligence claims many years after the initial injury or negligent treatment.
In respect of military clients the delay is, frequently, because serving personnel do not want to ‘rock the boat’ while they are still in the Forces. They wait until they have left the services before considering a civil claim. It can also be because of a misapprehension that they are actually not allowed to bring a claim while serving. This is a myth.
There are, in all legal claims, very strict time limits that must be adhered to, whether or not the injured person is serving.
These time limits vary depending on what area of law we are talking about but in personal injury and clinical negligence claims you have 3 years either from the date of the injury or from your date of knowledge in which to issue proceedings at court. This is known as limitation.
If you miss that deadline then you may become time barred from bringing the claim at all.
Date of Injury
In many personal injury claims the limitation date is fairly straightforward. It is 3 years from the date of the accident and there is not much room for debate (though it is worth asking as there can be exceptions. In military clients these exceptions can relate, for example, to the diagnosis of a non-freezing cold injury – an injury which you are unlikely to know you have sustained until the diagnosis is made).
Date of Knowledge
Date of knowledge most often comes into play in clinical negligence claims – those claims which relate to receiving or not receiving (as the case may be) appropriate medical treatment in the circumstances. It can also apply when somebody did not realise than an incident caused injury (for example, the non-freezing cold injury situation mentioned above)
Date of knowledge is when a person first suspects, or ought reasonably to have suspected, that they had been harmed by something done or not done by somebody else. This could be a suspicion they have personally, or it could be because their treating doctor or medical practitioner has indicated to them that something in their previous treatment was not done, and that this has made things worse or delayed a resolution of their symptoms. If alarm bells should have rung for a reasonable person, but didn’t, courts will still say that they are fixed with knowledge at that point.
In clinical negligence claims the date of knowledge can often be several years after the actual negligence.
For instance, let us say a person injures their leg and attends at the A&E department of their local hospital.
Their leg is examined, but no imaging is done, or images are taken but are interpreted incorrectly, and the person is told they have bruised the muscle but that there is no bony damage.
They are sent away with some advice to rest and take painkillers. There is no recommendation to take further advice if things don’t improve.
In actual fact the leg was fractured but this was not diagnosed by the hospital.
Some people may visit their own GP if the pain continues or they might make another visit to A&E. At that point the correct diagnosis may be made.
On the other hand, some people would accept what the A&E doctor says without question. They carry on with their life as normal, they attend work, do the housework, drive the kids to school etc, all the while with a broken leg.
The fractured bone will start to heal on its own. It could be some months, or even years, before further symptoms begin to show.
Perhaps the bone has not healed correctly and perhaps it causes further, significant problems, maybe with gait, maybe with balance. That person goes back to a doctor at that point and is told that they have an old fracture which has healed incorrectly and that they now require surgery to fix it. What is more, they are told that they are likely to suffer from long term symptoms in their leg as a result of the failure to diagnose and properly treat the original fracture.
As long as they have no reason that ought to lead them to suspect earlier that someone’s act or failure to act has caused them an injury, the date of knowledge in either case dates from the time when the person is told about the original fracture.
That person will have 3 years from that date in which to issue proceedings at court.
Section 33 Discretion
There is provision under section 33 of the Limitation Act 1980 which gives courts discretion to allow the case to continue even if the limitation period has expired, if it is just to do so.
Courts will exercise this discretion only in exceptional circumstances and it is difficult to convince them that such circumstances do exist.
There are a number of factors the court will take into account when deciding any particular case, and specialist advice should be taken on the chances of success. It must be remembered that how promptly a person acted after they realised there was a potential claim is high on the list, so it should be done as a matter of urgency.
It should also be remembered that fear of ‘rocking the boat’ is not a reason the court tends to favour.