FATAL ACCIDENTS AND LIMITATION: THERE IS NO BAR TO SECTION 33 BEING USED IF THE LIMITATION PERIOD EXPIRED PRIOR TO DECEASED PERSON’S DEATH
In Shaw v Maguire (Re Preliminary Issues) [2023] EWHC 2155 (KB) Master Cook considered an issue relating to limitation, Section 33 and fatal accident claims. Can a claimant rely on Section 33 in circumstances where the limitation period had expired prior to the deceased’s death? The Master did not accept observations in Kemp & Kemp that Section 33 could not be used in these circumstances.
“I cannot accept the submission that there is an absolute bar to the application of s.33 of the Limitation Act 1980.”
THE CASE
The claimant widower brought a clinical negligence action relating to treatment of her husband in 2007 and 2009. Her husband died in 2014. Proceedings had previously been issued, but not served. The husband’s (and widow’s) date of knowledge was found to be June 2013 prior to the husband’s death. The husband would have had until June 2016 to issue proceedings. The fatal accident limitation period is three years after the death. The proceedings were, in fact, issued in August 2022, just over 5 1/2 years later.
THE MASTER’S CONSIDERATION OF THE RULES RELATING TO LIMITATION
The Master had to address the question of whether the Court had power to exercise the Section 33 discretion in these circumstances. The position was not clear. There was no direct authority on the question and one of the major texts on personal injury stated that the Section 33 jurisdiction could not be engaged. However the Master found it could be engaged.
THE JUDGMENT ON THIS ISSUE
The appropriate application of the Limitation Act 1980 in claims under the Fatal Accidents Act 1976
“If the deceased failed to sue within his own limitation period then no Fatal Accidents Act claim may be pursued, and there is no power to make a retrospective s.33 application to disapply the limitation period once the victim has died: s.12(1).
Pursuant to s.12(2) of the Limitation Act 1980 the limitation period for fatal accident claims by dependants is three years from the date of death or the date of knowledge of the “person” for whose benefit the claim is brought, i.e. the dependant. If there is more than one dependant the limitation period is applied separately for each.”
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Mr Ferro submitted the proceedings herein were issued on 10th August 2022, some 13 years after the deceased’s date of knowledge, and 10 years after the expiry of the primary limitation period in respect of any claim the deceased may have wished to make against the Defendant. The claim was therefore statute barred before the deceased’s death and cannot as a matter of law be resurrected by the Claimant making an application under s.33 of the Limitation Act 1980 to disapply the primary limitation period. In the circumstances the Defendant’s primary case is that the claim is subject to an absolute bar, and the Court has no power to resurrect a right of action which had already expired by the time of the deceased’s death by exercising its discretion under s.33 of the Limitation Act 1980.
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“An action under the Fatal Accidents Act 1976 can in principle be statute-barred in one of two ways:
(1) At the time of his death, the deceased must have been in a position to sue the defendant had he survived injured by the wrongful act instead of dying because of it. Therefore if the limitation period expired between the deceased’s injury and his death from his wounds, no Fatal Accidents Act claim can come into existence. Thus if the deceased died of his wounds four years after being injured by the defendant, no Fatal Accidents Act claim would normally arise; though it could arise if it was not yet three years since the deceased acquired the relevant knowledge under s.14(1), e.g. the identity of the person who injured him. In deciding whether the deceased’s hypothetical personal injuries action—and hence the dependant’s actual Fatal Accidents Act claim—is thus statute-barred, the possibility that the deceased could have applied to the court to override the limitation period under s.33 is disregarded.
Although the possibility that the deceased could have invoked the court’s s.33 discretion is disregarded when determining whether his cause of action was statute-barred, the claimants in a Fatal Accidents Act claim may ask the court to exercise its discretion under s.33 of the Limitation Act 1980 and override the limitation period which would have barred the deceased’s claim, and hence bars theirs. This is provided for by s.33. The power of the court in this respect is qualified, however, by s.33(2). It can only “disapply” for these purposes the normal time-limit in personal injury cases. If the deceased’s claim was statute-barred by, say, the time-limit in the Carriage by Air Act 1961, there is no power to override. When the court exercises its discretion in such a case, the criteria it has to take into account are modified in the same way as when it is dealing with a Law Reform Act claim in which it is asked to override a limitation period which ran out in the lifetime of the deceased.
(2)Where a cause of action under the Fatal Accidents Act does arise, it must be brought within three years from either the date of the death, or “knowledge” of the person for whose benefit it is brought, whichever is the later. Where there are several potential Fatal Accidents Act claimants, then the limitation period runs separately against each of them: if one had the required knowledge more than three years before the action, the action is statute-barred against him but not against the others. The court has power to direct that such a claimant shall be excluded. If the dependant’s Fatal Accidents Act claim becomes statute-barred because it is not brought within three years, the dependant can ask the court to exercise its discretion to disapply the primary limitation period to allow the claim to proceed.”
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It seems to me the answer is provided by a careful reading of s12 (1) and s. 33 (2) of the Limitation Act 1980. The effect of s 12 (1) taken together with 33 (2) is that where an injured person with capacity dies three years of more after the accident or date of knowledge without commencing proceedings, the only avenue open to the personal representative on behalf of the dependants is to commence proceedings and apply to the court to exercise its discretion under s 33 to disapply the limitation period. On the basis that s.33(2) of the Limitation Act 1980 provides the court may disapply s.12(1) where the reason the person inured could not maintain an action was because of the time limit provided by s.11(4). This seems to me to be consistent.
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This also seems to be consistent with the approach taken in the case of MMG3 v Dunn [2019] EWHC 882 (QB). In this case the deceased suffered a long and lingering injury before his death with the result that the deceased had not commenced proceedings in the period in excess of three years between diagnosis (and date of knowledge) and his death. Therefore, the primary limitation period for the deceased’s claim expired in October 2011, pursuant to s.11 and by operation of s.12 of the Limitation Act 1980 the claimant’s claim could not proceed unless the Court exercised its discretion under s.33 of the Limitation Act 1980. The deputy circuit judge found as a fact that the deceased’s date of knowledge was October 2008 and went on to exercise his discretion under s.33 Limitation Act 1980 in favour of the Claimant. The decision of the deputy judge was upheld on appeal by Mrs Justice Yipp.
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Having brought this case to the attention of counsel and received their comments on it I agree with them that the point was not directly addressed but it appears the claim seems to have proceeded on the basis that it was accepted that s.33(4)-(6) of the Limitation Act 1980 permitted an extension to be sought by the personal representative of the estate in these circumstances. I also not that my view is consistent with that of the editors of Butterworths Personal Injury Service at [129].
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