Time Waits for no Man

Time waits for no man when it comes to a personal injury claim.  There is a deadline.  Miss it and you're doomed. Firstly, to bring a successful personal injury claim, you, the ‘Claimant’, must prove that the other party, the ‘Defendant, owed you a duty of care and secondly, that they breached that duty of care and are therefore negligent. If you can prove negligence, you also have to prove a link between that negligence and your resulting injuries and any consequent financial losses.  We call this link causation.  That link must not be broken by any intervening act or circumstances. The burden of proof rests with you, the Claimant.  You must prove that it is more likely than not that your version of events is correct and proves the negligence and causation in question. What is the time limit? Generally, in a personal injury claim, someone has 3 years to either settle a claim in their favour or, commence court proceedings.   This 3-year limitation period (see the Limitation Act 1980) starts either on the date of the incident when the injuries are suffered or, the date when it became apparent to the Claimant that they had suffered an injury and that it was the fault of another; we call this their ‘date of knowledge’. The date of knowledge for the purpose of calculating the commencement of the 3-year limitation period is the date when the Claimant knew, or ought to have known, that the injury was significant and was caused or contributed to by the actions or omissions of someone else i.e. our ‘Defendant’. Although a court does have the discretion to allow someone to pursue a claim outside those 3-years, this discretion is only exercised in very limited circumstances.  The court will look at all the circumstances and in particular the following when considering whether to apply this discretion:

1. The length of, and reasons why, for the delay on the part of the injured person;
2. The extent to which the delay may cause evidence in the case to be less clear than if the action had been brought within the 3-year period. The court would consider things like whether witnesses can still be identified and whether documents have been destroyed;
3. The extent to which the injured person acted promptly and reasonably once they knew whether or not the act or omission of the Defendant, to which the injury was attributable, might be capable of giving rise to a personal injury claim;
4. The steps, if any, taken by the injured person to obtain medical, legal or other expert advice and the nature of any such advice they may have received.

Limitation is an important legal principle and it is very rare for a Defendant not to raise it as a total defence to your claim. A successful limitation defence will end a case immediately. There are exceptions for children (aged under 18) and people with a mental disability (named ‘Protected Persons’) because by law they are incapable of instructing a solicitor to represent them.   A child would usually have a Litigation Friend act for them, such as a parent or adult sibling, and a protected person should rely upon the assistance of a lay, or professional, deputy who has been appointed by the court to represent them. Does Limitation apply to wounded, sick and injured servicemen and women? Yes! Our brave troops are not a special case and sadly, a large proportion of potential and very deserving military claimants contact us at a very late stage having been told that they cannot claim for their injuries until they have been discharged from military service. Indeed, many service personnel are unaware they can bring a claim at all. You can and should be encouraged to do so, after all, you are just as entitled to claim as all other employees and, without some accountability, your accident and injuries will likely be repeated, and we can ill afford to keep injuring our brave men and women, needlessly. Call us today. The application of the Limitation Act is very complex and you should instruct a qualified and accredited personal injury specialist such as Alma Law, in every instance. Grant Evatt 22nd June 2018