TEN MYTHS ABOUT LIMITATION THAT EVERY PERSONAL INJURY LITIGATOR SHOULD KNOW.

There are a surprising number of “myths” that prevail in personal injury litigation. In particular in relation to limitation. Here, as part of the “avoiding negligence” series we look at 10 of these myths.

Myth 1:  In a breach of contract case the limitation period is six years.

 This is clearly a prevalent belief. In  David Bond –v- Livingstone & Co  [2001] PNLR 30.the claimant suffered injuries in a clinic which was designed to cure baldness. Because this was a claim in contract the claimant’s solicitors believed (supported by the advice of two counsel) that there was a six year limitation period in contract.  The original defendants went into insolvency and a second action was issued (5 years after the event) against the credit card companies involved.

In fact the three year period in section 11 of the Limitation Act 1980 is the relevant period.  The court refused to exercise its discretion under section 33 and the claimant’s initial action failed.  The judgment is set out in some detail in the action for negligence against the solicitor where the High Court judge refused an appeal against summary judgment given for the claimant in the action against his solicitor.

Section 11 makes it clear that it deals with actions in relation to personal injury and specifically states that it governs actions in contract.

11Special time limit for actions in respect of personal injuries.

“(1)     This section applies to any action for damages for negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or of provision made by or under a statute or independently of any contract or any such provision) where the damages claimed by the plaintiff for the negligence, nuisance or breach of duty consist of or include damages in respect of personal injuries to the plaintiff or any other person.”

Myth 2: the personal injury limitation period is always three years.

 There are important exceptions to the three year limitation period.  These are invariably shorter than the three year limitation period.

1. In relation to air travel (which can include being in the airport).

See http://civillitigationbrief.wordpress.com/2013/09/19/accidents-abroad-and-the-foreign-limitation-periods-act-avoiding-negligence-claims-5/  and

http://civillitigationbrief.wordpress.com/2013/09/10/aviation-and-limitation-10-questions-every-personal-injury-litigator-should-ask/

2. In relation to water transport see

http://civillitigationbrief.wordpress.com/2013/09/15/trouble-at-sea-limitation-periods-and-water-travel-how-not-to-get-sued-4/

3. In relation accidents abroad see

http://civillitigationbrief.wordpress.com/2013/09/19/accidents-abroad-and-the-foreign-limitation-periods-act-avoiding-negligence-claims-5/

Myth 3: the limitation period for a child always starts on their 18th birthday.

 Not when the limitation period is subject to any of the issues raised above.  If the claim arises out of air travel; transport on water or in relation to an accident abroad then the strict provisions usually apply to children.

Myth 4: If my client is a patient/protected party then the limitation period cannot run

 If the claimant is a patient/protected party t at the time of the accident, or the accident itself renders the claimant a protected party immediately, all well and good.  However if at any time post accident the claimant has had capacity then the limitation period starts to run.  The briefest period of lucidity may suffice.  There is very old authority for the proposition that once the limitation period starts to run it cannot stop, Prideux –v- Webber (16610 1 Lev.31.  Do not let the age of that case fool you. It is still good law.

Also note that the stricter provisions relating to limitation that apply in air travel, travel at sea and in relation to accidents abroad, can apply to a protected party. Their claim can become statute barred under these provisions.

Myth 5: The limitation period for a fatal accident is always three years after the death.

Once again we return to the three issues set out above. Different limitation periods apply in relation to air and sea travel and accidents abroad. Further if the deceased’s date of knowledge/limitation period expired prior to death then the limitation period has expired.   It will be necessary to make an application under Section 33. See an example of the court exercising its discretion at http://fatalaccidentlaw.wordpress.com/2013/08/16/issuing-late-section-33-and-the-fatal-accidents-act-and-law-reform-act-an-example-of-a-claimant-succeeding/

For a decision where the court did not exercise its discretion under Section 33 see:

http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/QB/2013/1117.html&query=collins+and+stena&method=boolean

Myth 6: The relevant date for the limitation period is the date of issue on the claim form

This still gets argued occasionally. The defendant sees the date of issue and believes that it has a limitation defence.   However the relevant date is the date that the claim form is received at the court, not the date of issue.   See St Helens Metropolitan Borough Council –v- Barnes  [2006] EWCA Civ 1372. http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWCA/Civ/2006/1372.html&query=helens+and+barnes+and+limitation&method=boolean

Myth 7: The claimant issues in time if the claim form arrives at court, even if the fee is not sent.

 For proceedings to be issued within time the claimant has to file the fee. See the recent judgment in Page –v- Hewetts [2013] EWHC 2845 (Ch)

http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/Ch/2013/2845.html&query=page+and+hewett&method=boolean

Myth 8: The claimant is safe if he puts the claim form in the post on the last day of the limitation period 

Some claimants are confusing the rules relating to service of the claim form (where the key date is the date when the claimant puts the claim form in the post for service) with issue of the claim form (where the key date is receipt by the court).   These are very different principles. Remember for the purpose of issue the relevant date is the date the court receives the documents and receives the fee.

Myth 9: If a claimant misses a limitation period they can always rely on section 33.

 Not always.  If the case falls within the jurisdiction dealing with air travel, sea travel or is an accident abroad, then Section 33 does not apply

Myth 10: the date of knowledge is the date when the client gets the medical report telling them about causation/damage/negligence

 This is a very unsafe assumption. This is a very big topic.  It is notable that in AB –v- Ministry of Defence http://www.supremecourt.gov.uk/decided-cases/docs/UKSC_2010_0247_Judgment.pdf  the Supreme Court was divided about the meaning of the “date of knowledge”.   However, in any event, the date is not the date that client gets the medical report.  It is not a test that can be summarised succinctly.  For the purpose of this post the important thing for the claimant lawyer to note is to:

1. Assume that the date of knowledge is the earliest date possible.

2. If there is any issue as to limitation investigate the issue at the outset.

3. Never accept the claimant’s own word on these issues. The claimant can be patently honest and yet badly mistaken.  Corroborative evidence (particularly documentary evidence and medical records) are crucial.  See the discussion at http://civillitigationbrief.wordpress.com/2013/07/05/how-not-to-get-sued-1-the-three-year-limitation-period/

RELATED POSTS

I have posted links to the relevant posts throughout for ease of reference

  • The posts In relation to air travel (which can include being in the airport).

http://civillitigationbrief.wordpress.com/2013/09/19/accidents-abroad-and-the-foreign-limitation-periods-act-avoiding-negligence-claims-5/  and

http://civillitigationbrief.wordpress.com/2013/09/10/aviation-and-limitation-10-questions-every-personal-injury-litigator-should-ask/

  • In relation to water transport see

http://civillitigationbrief.wordpress.com/2013/09/15/trouble-at-sea-limitation-periods-and-water-travel-how-not-to-get-sued-4/

  • In relation accidents abroad. See

http://civillitigationbrief.wordpress.com/2013/09/19/accidents-abroad-and-the-foreign-limitation-periods-act-avoiding-negligence-claims-5/

LINKS TO CASES

  • The Supreme Court decision on date of knowledge in the AB case is at

http://www.supremecourt.gov.uk/decided-cases/docs/UKSC_2010_0247_Judgment.pdf

  • The decision in Page –v- Hewetts on the need for the fee to be sent to court is at

http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/Ch/2013/2845.html&query=page+and+hewett&method=boolean

  • The decision on the for limitation period being the date of receipt at court rather than the date of issue is at

http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWCA/Civ/2006/1372.html&query=helens+and+barnes+and+limitation&method=boolean