The Time Limit in Personal Injury Claims

Published on 4 Oct 2023

A personal injury claim is a claim for compensation where a person has suffered injuries as a result of an accident and another party is at fault.

Under the Limitation Act 1980 the usual time limit that applies to personal injury claims, known as the ‘limitation period’, is three years from the date on which the injuries occurred or the date of knowledge if later. The claimant (the person bringing the claim) must have issued proceedings before the limitation date which means their claim form must have been submitted and issued by the court by this date. If a claim form is submitted after the expiry of the three year limitation period, generally the defendant can rely on limitation as a complete defence.

An understanding and awareness of the limitation period by potential claimants is of great importance as a failure to comply with the limitation period can prevent a claim. The purpose of the limitation period lies in public policy and is to prevent the unfairness of claims being brought against a defendant many years after the injuries were sustained.

Date on which the injury is suffered

In many personal injury cases, the date on which the injuries occurred is easy to ascertain. For example, in a road traffic accident it is generally the date of the accident.

Date of knowledge

However, in other types of cases, such as a work related disease claim, it is much more difficult to pinpoint the date on which the injuries occurred. The claimant will often develop symptoms years after their employment has ended and will therefore generally try to rely on a later date of knowledge, rather than the date on which the injuries occurred.

Date of knowledge is defined as the date when the claimant first had knowledge that the injuries were significant and that it was fully or partly the defendant’s fault. A claimant does not have to be specifically told that the defendant was at fault, they can be found to have obtained either actual or constructive knowledge to this effect. Actual knowledge is entirely subjective and means that the claimant believed that the injuries were the defendant’s fault.

Constructive knowledge is an objective test which looks at whether a reasonable person in the claimant’s circumstances would have believed the injuries were the defendant’s fault. A claimant therefore could be held to have had knowledge that the defendant was at fault, even if in reality they were not actually aware of this. For example, in one case a young claimant suffered from hearing loss as the result of working in one noisy work environment with no hearing protection and the claimant was aware of the risk of hearing loss arising from excessive noise. The court held that, following further investigations, the claimant should reasonably have been aware at an earlier date that the defendant was at fault.

The court’s discretion

The court has a wide discretion to allow a claim to be brought even if proceedings were issued after the expiry of the limitation date. The court will have regard to all the circumstances of the case and the factors that the court will consider include the following:

  • the length of, and the reasons for, the delay on the part of the claimant;
  • the extent to which, the evidence adduced by the claimant or the defendant is or is likely to be less persuasive;
  • the conduct of the defendant after the injury arose,
  • the extent to which the claimant acted promptly and reasonably once he knew that the injury was the defendant’s fault;

The court’s decision making is highly fact specific and has not always been applied consistently. However, some general principles have been established from the case law. The court’s discretion is not limited to difficult or unusual cases. Overall, the court will consider whether the prejudice suffered by the claimant is likely to outweigh that of the defendant if they cannot bring a claim.

The court found in the claimant’s favour in a case where proceedings were issued only one day late, due to a delay by the legal team and the defendant had received early notification of the claim. On the other hand, the court was unwilling to allow a claim to be brought outside of the limitation period in a case where the claimant issued proceedings five years late and the contemporary records that the claimant sought to rely on had been destroyed.

Exceptions to the three year limitation period

There are a number of exceptions to the three year limitation period in personal injury claims. The key ones are listed below:

Person under a disability – there is no limitation period for someone who lacks capacity;
Children claimant’s – the limitation period is three years from the child’s 18th birthday;
Criminal Injuries Compensation Authority (CICA) claims – the limitation period is two years from the date of the incident;
Fatal accidents – the limitation period is three years from the date of death or from the date of the dependant’s knowledge;
Accidents abroad – as per the legislation in the country where the accident happened.

Three years may seem like a long time within which to bring a personal injury claim, but it is important to note that it can take a long time to issue proceedings, as there is generally a lot of work to do and procedures to follow prior to this. There is the option of relying on a later date of knowledge or applying for discretion from the court to bring a claim outside of the limitation period. However, date of knowledge arguments can be very technical and complex and there is no guarantee of successfully relying on the court’s discretion as the court’s decision making is so fact specific.

We advise anyone who is considering bringing a personal injury claim, particularly if you believe there will be issues relating to the limitation period, to seek legal advice as soon as possible. If you have any questions, please contact a member of our Personal Injury Team.

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