CIVIL PROCEDURE: BACK TO BASICS 25: FATAL ACCIDENT ACT LIMITATION PERIODS AND CHILDREN

The law of limitation for  Fatal Accidents Act claims for children is often misunderstood.    Here we look at the limitation period in relation to fatal accident claims and children.  There are two issues: the limitation period when any of the dependants are children: the limitation period when it is a child who has been killed. Both of these issues can give rise to some confusion.

(This is one of the many issues I am considering in the webinar “Fatal Accidents: avoiding the pitfalls”, on the 29th March 2019).

CHILD DEPENDANTS HAVE A DIFFERENT LIMITATION DATE

You can be forgiven (morally if not legally) for not knowing this in Richardson -v- Watson [2006] EWCA Civ 1662 the claimants in a fatal case issued a second set of proceedings outside the limitation period, having discontinued the first action because the MIB had not been given appropriate notification. It was only at the Court of Appeal stage that leading counsel for the claimant appreciated the point that the child claimants were subject to a different limitation period.  This point made a major difference to the outcome in the Court of Appeal and the court allowed an appeal against a decision refusing the exercise of  discretion under Section 33 of the Limitation Act 1980.

“Before the judge, the case was approached on the basis that all claims contained in the new proceedings were out of time and so stood or fell together. Mr David Phillips QC for the appellant frankly conceded that he had overlooked the fact that the appellant claims both on her own behalf and on behalf of her infant children whose claim is not out of time and will thus proceed in any event. This is undeniably a material difference and it is plainly necessary for us to exercise our discretion afresh”.

The Court of Appeal went on to state

“We return to the fact that the claim brought on behalf of the infant children will proceed in any event. Their claim turns on precisely the same issues as the appellant’s. We agree with Mr Phillips that the fact that, in the absence of a settlement, the MIB will have to defend a trial on the merits in any event weighs in favour of the appellant being able to join her claim to that of her children.”

THE STATUTE: LIMITATION ACT 1980 (READ WITH CARE)

Readers have to read the statute carefully to get to this.

Start with section 12(3) of the Limitation Act 1980

“An action under the Fatal Accidents Act 1976 shall be one to which sections 28, 33 and 35 of this Act apply, and the application to any such action of the time limit under subsection (2) above shall be subject to section 39; but otherwise Parts II and III of this Act shall not apply to any such action.”

Section 28 states:

(1)Subject to the following provisions of this section, if on the date when any right of action accrued for which a period of limitation is prescribed by this Act, the person to whom it accrued was under a disability, the action may be brought at any time before the expiration of six years from the date when he ceased to be under a disability or died (whichever first occurred) notwithstanding that the period of limitation has expired.

But don’t get thrown by the reference to six years in the context of a personal injury or fatal accident claim,  Section 28(6) provides:

“If the action is one to which section 11 or 12(2) of this Act applies, subsection (1) above shall have effect as if for the words “six years” there were substituted the words “three years”.”

 A CHILD CLAIMANT  MAY HAVE AN EXTRA YEAR IN A CASE WHERE THE TWO YEAR “MARITIME” LIMITATION PERIOD APPLIES

In Warner v Scapa Flow Charters (Scotland) [2018] UKSC 52 the Supreme Court held that a child claimant had a three year limitation period in an action brought under the Athens Convention as opposed to the usual three year limitation period. See the discussion here.  (This was a decision in relation to Scottish law, however, the  situation may not be the same in England and Wales.

THIS DOES NOT APPLY WHEN  IT IS A CHILD THAT IS KILLED

I have now seen several cases where a claimant lawyer has assumed that because the victim was a child then the limitation period runs from what would have been that child’s 18th birthday. This is a cruel mistake to make.

Section 12 (2) provides that the limitation period runs from the date of death

“(2)None of the time limits given in the preceding provisions of this Act shall apply to an action under the Fatal Accidents Act 1976, but no such action shall be brought after the expiration of three years from—

(a)the date of death; or

(b)the date of knowledge of the person for whose benefit the action is brought;

whichever is the late”

The claimants in these cases are (usually) the child’s parents.  The limitation period remains three years.