Limitations

Question 1

Legislation?

Answer 1

Statute of limitations act 1957 (1991)
Civil liability & courts act 2004

Question 2

Personal injuries actions?

Answer 2

Modified by 1991 statute - more equitable for plaintiff

S3(1) clock will run from date on which cause of action accrued or date of knowledge if later

Introduced a fairer system - under 1957 act began when recognisable injury occurred now P has choice

Question 3

When is date of knowledge?

Answer 3

S2(A) date in which P has knowledge of following facts:

1. That he had been injured
2. That there was significant injury
3. Identity of D
4. Injury caused by negligence

Included knowledge P might be expected to know:

1. From facts observable / ascertain able
2. “ “ for medical or expert advice

Question 4

Knowledge: Had been injured

Answer 4

Maitland v Swan & Sligo CoCo 1992 (ovary)
P sued 1985, learned of removal in 1971 & Discovered 1983 left ovary not normal

D argued limitation period expired, removal itself significant injury

Barr rejected: under 1991 act injured meant harmed. Necessary successful surgery not harmful.

Question 5

Date of knowledge: significant injury?

Answer 5

Arises when P realises full extent.

Halford v Brookes 1991: does not require certainty, reasonable belief enough

Gough v Neary 2003 (hysterectomy): SC clarified “injury”

Question 6

Knowledge: identity?

Answer 6

p not fixed with knowledge till identity of D known or it would be difficult to prove case
Environmental cases

Question 7

Knowledge: injury caused by negligence?

Answer 7

DOK is date P became aware injury caused by D

Caused factual not legal sense

Question 8

PIAB?

Answer 8

Under 2004 & 2003 act P required to make application before bringing action

If matter cannot be resolved PIAB will issue authorisation allowing to sue

S50 PIAB act provides period of making application to 6 months after date of authorisation disregarded

Question 9

Disabled people: categories?

Answer 9

Infant

Person of unsound mind

Convict subject to forfeiture act 1870

Victim of sexual abuse

Question 10

Disabled people?

Answer 10

S48 extends period

S49: extension does not apply where P in custody of parent

Challenged in OBrien v Keogh 1972
🔑 to ensure where parent caused injury they could delay bringing action to protect themselves

Question 11

Undue Delay?

Answer 11

Imitation can be ignored/ court has discretion

If C has opinion there has been such unreasonable delay so D cannot mount adequate defence

Primor PLC v Stokes Kennedy set out principles:

1. D must show delay inordinate & inexcusable
2. Even if delay was, court has discretion in deciding whether would be in interests of justice.

Question 12

Factors Court will take into account for Undue Delay?

Answer 12

1. Constitutional principles of basic fairness
2. Special circumstances of case
3. Both parties conduct regarding delay

If D caused delay, may imply they accepted Ps claim.

Question 13

Fraud?

Answer 13

S71(1) SOL Act 1957: If P’s action based on fraud or ROA concealed by fraud, limitation period starts only when P discovers fraud