The limitation period in clinical negligence and personal injury claims

Julie Hatton, Partner and clinical negligence specialist at Coodes Solicitors highlights the importance of the limitation period in clinical negligence and personal injury claims.

If you have been injured through clinical negligence or an accident, seeking compensation is likely to be the last thing on your mind. You are probably more concerned with recovering from your injuries. However, the clock is ticking and there is a strict deadline for the majority of claims.

The three year limitation period

For most personal injury or clinical negligence claims the time limit is three years from the date of injury, or date of knowledge of the injury. In most cases, you would need to issue court proceedings before the expiry of the three year limitation deadline.

This is set out by law in Section 11 of the Limitation Act 1980.

The date of knowledge

In many cases, the three year limitation period is calculated from the date of the injury. However, in some instances the deadline is determined by what is known as the ‘date of knowledge’.

The date of knowledge is when someone first knew one of the following:

• That the injury was significant enough to warrant taking legal action.
• That the injury was wholly or partly caused by someone else.
• The identity of the individual who caused the injury.
• Any additional significant facts about the accident or event that caused the injury.

Date of knowledge is often a factor in cases involving industrial diseases or medical negligence. In these examples, the extent or severity of an injury or the circumstances in which it occurred may not be immediately apparent. Your specialist personal injury or clinical negligence lawyer can advise you on whether or not date of knowledge is relevant to your case.

Exceptions to the three year limitation period

While most clinical negligence and personal injury claims have a strict three year deadline, there are some important exceptions. These are claims on behalf of children and people who do not have mental capacity.

The limitation period does not start until someone reaches their 18^th birthday. That means, if you are under 18 and are making a claim through a litigation friend, your claim will not be subject to the three year deadline until you turn 18.

If a claimant is classed as lacking mental capacity, perhaps as a result of a learning disability, there are some issues to consider. If temporary loss of capacity was caused by the accident, the time will be calculated from the date of the claimant’s recovery. However, someone who lacks capacity as a result of a permanent disability will not be subject to any particular deadline.

Extending the limitation period

There are some instances when the court may be able to extend the three year limitation period. The court will consider the reasons for a delay and, if it feels the claimant has been unfairly prejudiced, it may offer some flexibility. This might be because of the defendant’s conduct or delays in obtaining medical, legal or other expert evidence, despite the claimant’s best efforts.

Further flexibility has been introduced during the Coronavirus pandemic, allowing an additional three months for a claim to be submitted. The COVID-19 Clinical Negligence Protocol (2020) was created to adapt to delays in handling clinical negligence claims during the pandemic. This recognises that delays in expert reports are likely as a result of the additional pressure on front-line medical professionals.

Although there are some exceptions and the courts can occasionally exercise a degree of flexibility, it is crucial to recognise the importance of the three year limitation period. If you are considering seeking damages following an accident or instance of clinical negligence, get legal advice as soon as possible. It takes considerable time to gather evidence and put together a claim. Starting the process as quickly as possible will give you the best chance of getting compensation. It will also help you to access the treatment you need to aid your recovery.

For more information and advice on a clinical negligence or personal injury claim, contact Julie Hatton on 01326 214 036 or julie.hatton@coodes.co.uk.