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Personal Injury Claims: Know your limits…
The Limitation Act 1980
No matter how justified your claim may be, it is important that you are aware of the strict time limits before pursuing a claim. If you miss the limitation deadline, it is unlikely you will be able to claim for compensation.
The law surrounding limitation periods are quite complex and are set out in the Limitation Act 1980. Claims relating to personal injury usually have to be brought within three years from the date that the accident occurred or from the date of knowledge.
What is considered in a personal injury claim?
A personal injury claim is a legal claim for compensation for an injury; harm caused; illness or a condition. You must be able to prove on the balance of probabilities that any injury suffered was as a direct result of the negligence or breach of duty of the defendant.
What is the date of knowledge?
The date of knowledge is a question of fact. Under the 1980 Act it is defined as the actual date when the claimant became aware:
- The injury in question is significant;
- The injury is directly attributable to the negligent act or omission; breach of duty of another party and;
- The identity of the defendant
This would include circumstances where you have sustained an injury or a condition that does not become apparent until sometime after the date of the accident.
There are certain circumstances where the three year limitation period does not apply:
Children that have been injured
A child cannot bring a claim themselves and would require a “Litigation Friend” to act on their behalf who is ordinarily a parent or close relative. The limitation period in respect of a personal injury claim for a child does not begin until they reach the age of 18 when they are able to pursue a claim themselves.
The limitation period is still three years but is not triggered until the 18th birthday.
A “Litigation Friend” is a person acting on behalf of an infant or other person with a legal disability.
The mental capacity of an individual
Certain individuals who have been injured and as a result lack the mental capacity to bring a claim could be unjustly prejudiced by the three year time limit.
If an individual lacks capacity prior to or from the date that they were injured, the three year limitation will not begin until that person regains capacity. A claim can be brought by a Litigation Friend.
If an individual loses capacity after the injury, the three year limitation and proceedings must be commenced three years from the date of the negligence or the date of knowledge.
In unfortunate cases where the injured person dies within the 3 year limitation period, the time limit is extended to 3 years from the date of death or the date of knowledge of the deceased, whichever is the later date. This allows the deceased’s estate to bring a claim on their behalf.
What happens if the claim is not brought in time?
If legal proceedings are not commenced in Court in accordance with the above limitation periods, the Court may not allow you to bring a claim for compensation. There is nothing in law to prevent you from commencing a claim, even where it is “out of time” but a defendant is highly likely to apply to the court to have any claim struck out on the basis that the specified limitation period has expired.
Although the court has the ability to do so, it is rare that a court will extend a limitation period. Emphasis is placed on the importance of being aware of such limitation periods and acting in accordance with them.
The law relating to limitation periods can be very complicated, especially where medical treatment is being considered.
The facts of each case need to be determined and considered on their own merits. It is therefore very important that expert legal advice is sought as soon as you realise you have suffered an injury.
Here at Elliot Mather, we have specialists in our Dispute Resolution team that can assist you if you have suffered an injury due to the negligence of a third party.
If you would like our assistance or you would like to make an appointment to get some advice then please contact Laura Higginbottom at our Chesterfield office:
St Mary's Court, Block A St Mary's Gate, Chesterfield, S41 7TD
Our experienced solicitors; Claire Everest and Hannah Fairweather are also located at our Chesterfield office.
Offices also located at:
Derby: Gervase House, 111-113 Friar Gate, Derby, DE1 1EX.
Nottingham: Stanford House, 19 Castle Gate, Nottingham, NG1 7AQ.
Mansfield: Westgate House,1 Chesterfield Road South, Mansfield, NG18 5NR.
Matlock: Sherwood House, Holt Lane, Matlock, Derbyshire, DE4 3LY.
Elliot Mather LLP maintains professional indemnity insurance in accordance with the rules of the Solicitors Regulation Authority. Details of the insurers and the territorial coverage of the policy are available for inspection at our offices.
Registered Office: St. Mary's Court, St. Mary's Gate, Chesterfield, Derbyshire, England, S41 7TD
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