Limitation of Action

Question 1

What is the standard limitation period?

Answer 1

Claimant must normally commence action (bring claim to court) within 3 years of:
 Date on which the cause of the action occurred/ incident date
 Date of knowledge (if later) of the person injured (burden of proof is on the claimant)

Note: the date on which the cause of the action (claim) accrued is excluded.

Question 2

Is the limitation period different for children?

Answer 2

Yes, it is 3 years from their 18th birthday and expires on their 21st birthday.

Question 3

List the criteria used to define date of knowledge?

Answer 3

1. That the injury was significant
2. That the injury was in whole or in part due to negligence ( the acts or omissions of the defendant)
3. The identity of the defendant was known
4. The facts were known (observable or ascertainable either directly or with help of an expert)

Question 4

What is the limitation date for someone who lacks capacity under the MCA (2005)

Answer 4

Where the injured person lacked mental capacity at the time of the incident, the three year period will only start to run when they regain mental capacity. So, if the person under a disability never regains capacity, the limitation period will not apply – it will never start.

If the person does regain capacity 9even if only briefly), the limitation clock will start to run from the day they regained capacity.

Question 5

When a claim is made on behalf of a deceased’s estate (under the Law Reform Miscellaneous Provisions Act 1934), what is the limitation date?

Answer 5

In respect of a person who dies before their three year limitation period ends, their personal representative (estate) has an extra three years to bring a claim on the deceased’s behalf, and this starts on:

1. The date of death, or
2. The date of the deceased’s date of knowledge, whichever is later.

Question 6

When a claim is brought by the dependants of the deceased under the Fatal Accidents Act 1976, what is the limitation date?

Answer 6

In respect of a person who dies before their three year limitation period ends, their dependants have an extra three years to bring a claim, and this starts on:

1. The date of death, or
2. The date of knowledge of the person for whose benefit the claim is being made.

Note: where there is more than 1 defendant the limitation period is applied separately to each one. For children the clock starts on their 18th birthday and expires on their 21st.

Question 7

When a person fails to make a personal injury claim within the 3 year limitation period and they go on the die from their injuries, can their dependants bring a claim under the Fatal Accidents Act 1976

Answer 7

No.

Question 8

What factors must a court take account of when considering whether to disapply the limitation period?

Answer 8

1. The length and reasons for the delay on the part of the claimant
2. The effect of any delay on the cogency of evidence (written evidence important where memories are unreliable)
3. The conduct of the defendant following the date of the cause of the action
4. The conduct of the claimant after they became aware that they may have a claim against the defendant
5. The steps taken by the claimant to obtain medical, legal or other expert advice and the nature of any advice given
6. The duration of any disability (under the MCA) suffered by the claimant after the incident.