back to basics: limitation in personal injury claims...when does the special regime apply?...

1 Chancery Lane Webinar

Back to Basics: Limitation in Personal Injury Claims

Paul Stagg

Susanna Bennett

Barristers, 1 Chancery Lane

August 20th 2020The Chambers of Simon Readhead QC

Limitation in personal injury claims

About this webinar

– Aim: to give a knowledge of the basic legal framework application to limitation in the context of personal injury work

– Questions: please insert in the Q&A box

– Slides will be made available on our website as soon as possible


Limitation in personal injury claims

Topics covered

– Applicability of the special limitation regime for personal injury claims: PS

– The running of time: PS

– The "date of knowledge" provisions: PS

– Disapplication of the limitation period: SB


When does the special regime apply?

The legislative structure

– General rule: claims must be brought within 6 years of accrual of cause of action

– tort: Limitation Act 1980 s2

– contract: LA s5

– Special limitation regime for personal injury claims

– must be brought within 3 years of accrual of cause of action or date of knowledge: LA s11

– can be disapplied: LA s33



Definition of a personal injury claim

– LA s11(1):

.... any action for damages for negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or of provision made by or under a statute or independently of any contract or any such provision) where the damages claimed by the plaintiff .... consist of or include damages in respect of personal injuries to the plaintiff or any other person.



“negligence, nuisance or breach of duty”

– "Negligence" and "nuisance": torts of that name

– "Breach of duty" includes

– breach of contract

– breach of statutory duty

– assault and battery: A v Hoare [2008] UKHL 6, [2008] 1 AC 844, overruling Stubbings v Webb [1993] AC 498

– other deliberate torts? eg misfeasance in a public office, deliberate infliction of psychiatric harm



"consist of or include"

– It applies to mixed claims: eg Azaz v Denton [2009] EWHC 1759 (QB): claim for psychiatric injury, undue influence in relation to property against spiritual guru

– Will not apply to other claims where another statutory regime applies



“damages in respect of personal injuries”

– LA s38: "includes any disease and any impairment of a person's physical or mental condition ...."

– Applies to:

– pregnancy: Walkin v South Manchester HA [1995] 1 WLR 1543

– wrongful birth: Godfrey v Gloucestershire RI NHS Trust [2003] EWHC 549 (QB), [2003] LRM 398.

– failure to ameliorate congenital dyslexia: Adams v Bracknell Forest BC [2004] UKHL 29, [2005] 1 AC 76



Cases falling outside the regime: other provisions in the Limitation Act

– Fatal cases

– Claim on behalf of estate: LA s11(5)

– Fatal Accidents Act 1976: LA ss12, 13

– Protection from Harassment Act 1997: LA s11(1A)

– Defective products under Consumer Protection Act 1987: LA s11A

– Claim against insurer under Automated and Electric Vehicles Act 2018: LA s11B



Cases falling outside the regime: other statutory provisions

– Human Rights Act 1998 s7(5)

– Equality Act 2010 s118

– Travel conventions

– Air: Montreal Convention

– Rail: Convention on International Carriage by Rail

– Sea: Athens Convention


The running of time

Commencement of the period

– LA s11

(3) An action to which this section applies shall not be brought after the expiration of the period applicable in accordance with subsection (4) or (5) below.

(4) Except where subsection (5) below applies, the period applicable is three years from—

(a) the date on which the cause of action accrued; or

(b) the date of knowledge (if later) of the person injured.


The running of time

“the date on which the cause of action accrued”

– Time starts to run when all constituent parts of cause of action present

– Some causes of action do not require identifiable damage

– breach of contract

– trespass to the person (eg assault and battery)

– Others do require presence of damage

– negligence

– breach of statutory duty


The running of time

What is relevant damage?

– Cartledge v E Jopling & Sons Ltd [1963] AC 758

– any damage which is more than minimal is sufficient

– knowledge of claimant irrelevant

– Second type of injury irrelevant: Lloyd v Humphreys & Glasgow Ltd [2015] EWHC 525 (QB): C first got asbestosis and then mesothelioma arising from asbestos exposure: time began to run on first damage to lungs


The running of time

Postponement

– Person under a disability: time does not commence running until no longer under a disability: LA s28(1), (6)

– Definition: s38(5)

– children: time does not start to run until 18

– person lacking capacity to litigate:

– time does not start to run until capacity regained

– then it will run even if capacity subsequently lost.

– if not, will never start to run: Headford v Bristol and District HA [1995] PIQR P180

– Fraud, concealment and mistake: LA s32


The running of time

Moratorium by agreement

– It will regularly be necessary for parties to agree that limitation period should not apply for a particular period

– to avoid C having to issue when parties expect to settle

– to enable protocol to be complied with

– to enable appropriate chance to obtain evidence

– D will not be able to rely on period for which agreement in place


The running of time

Moratorium by agreement

– Trap for C:

– do not assume that limitation period is being extended

– necessary to obtain express written agreement from D, or forced to rely on estoppel, which is difficult to prove: Deerness v John Keeble & Son Ltd [1983] 2 Lloyds’ Rep 260

– Trap for D:

– care needs to be taken over wording used to avoid losing any accrued limitation defence

– eg abuse claim brought 25 years after event, insurer said "limitation is not an issue", held to have waived previous 25 years as well as further 6 months before issue

– need to make clear that agreement reserves rights as to period before agreement


The running of time

The bringing of the claim

– CPR 7.2:

(1) Proceedings are started when the court issues a claim form at the request of the claimant.

(2) A claim form is issued on the date entered on the form by the court.

– CPR PD 7A

5.1 ....where the claim form as issued was received in the court office on a date earlier than the date on which it was issued by the court, the claim is ‘brought’ for the purposes of the Limitation Act 1980 and any other relevant statute on that earlier date.

– Need to see Notice of Issue as well as Claim Form.


The running of time

Calculating the period

– Ignore the date of injury, take into account the date on which the claim is brought

– Part days are ignored

– If injured on August 20th 2017 at 2pm, in time if claim brought by midnight on August 20th 2020

– If court office closed on last day in time if issued on next day: Pritam Kaur v S Russell & Sons Ltd [1973] 1 QB 336


Date of knowledge

Four factors and an irrelevancy– LA s14(1).... references to a person's date of knowledge are references to the date on which he first had knowledge of the following facts—

(a) that the injury in question was significant; and

(b) that the injury was attributable in whole or in part to the act or omission which is alleged to constitute negligence, nuisance or breach of duty; and

(c) the identity of the defendant; and

(d) if it is alleged that the act or omission was that of a person other than the defendant, the identity of that person and the additional facts supporting the bringing of an action against the defendant;

and knowledge that any acts or omissions did or did not, as a matter of law, involve negligence, nuisance or breach of duty is irrelevant.


Date of knowledge

“Knowledge”

– Ministry of Defence v AB [2012] UKSC 9, [2013] 1 AC 78: 4-3 decision, main judgment for majority given by Lord Wilson

– [11] C has acquired knowledge of facts when he first came to reasonably believe in them; evidence to support the belief is not required.

– [12] The belief must be held “with sufficient confidence to justify embarking on the preliminaries to the issue of a writ, such as submitting a claim to the proposed defendant, taking legal and other advice and collecting evidence.”

– [13]-[14] It does not follow that C will have knowledge when he first consults an expert; the expert may assist in acquiring knowledge as well as providing evidence.


Date of knowledge

Constructive knowledge

– LA s14(3)

(3) For the purposes of this section a person's knowledge includes knowledge which he might reasonably have been expected to acquire—

(a) from facts observable or ascertainable by him; or

(b) from facts ascertainable by him with the help of medical or other appropriate expert advice which it is reasonable for him to seek;

but a person shall not be fixed under this subsection with knowledge of a fact ascertainable only with the help of expert advice so long as he has taken all reasonable steps to obtain (and, where appropriate, to act on) that advice.


Date of knowledge

Constructive knowledge

– Adams v Bracknell Forest BC [2004] UKHL 29, [2005] 1 AC 76: dyslexia case

– [43] a person suffering injury will "display some curiosity" about it

– [45] the test is objective

– [49] if the injury would itself inhibit C from taking advice, that must be taken into account


Date of knowledge

(a) significance of injury

– LA s14(2)

(2) For the purposes of this section an injury is significant if the person whose date of knowledge is in question would reasonably have considered it sufficiently serious to justify his instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment.

– Where two injuries sustained, time begins to run as soon as C knows that one is significant: Bristow v Grout [1986] The Times, November 3rd


Date of knowledge

(a) significance of injury

– Catholic Care (Diocese of Leeds) v Young [2008] UKHL 6, [2008] 1 AC 844: the test is a purely objective one; “an entirely impersonal standard”.

.... You ask what the claimant knew about the injury he had suffered, you add any knowledge about the injury which may be imputed to him under section 14(3) and you then ask whether a reasonable person with that knowledge would have considered the injury sufficiently serious to justify his instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment .... The effect of the claimant's injuries upon what he could reasonably have been expected to do is therefore irrelevant.


Date of knowledge

(a) significance of injury: abuse

– Common scenario: C may be conditioned by grooming to submit to abuse, may suffer severe psychiatric reaction many years later

– Stubbings v Webb [1993] AC 498

I have the greatest difficulty in accepting that a woman who knows that she has been raped does not know that she has suffered a significant injury. .... Sexual abuse that goes no further than indecent fondling of a child raises a more difficult question, but some of the plaintiff's allegations are so serious that I should have had difficulty in regarding them as other than significant.


Date of knowledge

(b) attributability

– Spargo v N Essex District HA [1997] PIQR P235(1) The knowledge required to satisfy s 14(1)(b) is a broad knowledge of the essence of the causally relevant act or omission to which the injury is attributable;

(2) “Attributable” in this context means “capable of being attributed to”, in the sense of being a real possibility;

(3) A plaintiff has the requisite knowledge when she knows enough to make it reasonable for her to begin to investigate whether or not she has a case against the defendant. Another way of putting this is to say that she will have such knowledge if she so firmly believes that her condition is capable of being attributed to an act or omission which she can identify (in broad terms) that she goes to a solicitor to seek advice about making a claim for compensation;


Date of knowledge

(b) attributability

– Spargo v N Essex District HA [1997] PIQR P235(4) On the other hand she will not have the requisite knowledge if she thinks she knows the acts or omissions she should investigate but in fact is barking up the wrong tree: or if her knowledge of what the defendant did or did not do is so vague or general that she cannot fairly be expected to know what she should investigate; or if her state of mind is such that she thinks her condition is capable of being attributed to the act or omission alleged to constitute negligence, but she is not sure about this, and would need to check with an expert before she could be properly said to know that it was.


Date of knowledge

(b) attributability: law and fact

– A careful distinction must be drawn as to

– the facts giving rise to blame

– the fact that D is to blame in law

– eg clinical negligence: ongoing symptoms following operation

– C must know that the symptoms are attributable to something going on in the operation

– C need not know that surgeon failed to act in accordance with reasonable body of surgeons


Date of knowledge

(b) attributability: industrial disease

– Question usually turns on link between exposure etcand disease

– Knowledge of exposure and disease in isolation will not be enough

– Evidence will be important from:

– medical records: when was cause of C's illness first recognised by doctors?

– general knowledge in the industry, taking account of fact that workers will generally be in a much worse position than employers to have technical knowledge


Date of knowledge

(c) and (d) identity of defendant

– Cressey v E Timm & Son Ltd [2005] EWCA Civ 763, [2006] ICR 282: C employed by company A in group but company B's name appeared on payslips

– Group's insurers failed to clarify issue in correspondence

[37] In most straightforward situations I think that there will be no difficulty in concluding that the identity of a defendant will be known to or ascertainable by a victim at the time of the accident. In some situations, however, it may be that an identity is only known or knowable in a more general way and that it will not be possible to say that the identity is properly known, even with the assistance of constructive knowledge, until a name has been or could have been attached.


Section 33 of the Limitation Act 1980:

the Court’s discretion to extend the

limitation period

“(1) If it appears to the court that it would be equitable to allow an action to proceed having regard to the degree to which—

(a)the provisions of section 11 or 11A or 12 of this Act prejudice the plaintiff or any person whom he represents; and

(b)any decision of the court under this subsection would prejudice the defendant or any person whom he represents;

the court may direct that those provisions shall not apply to the action, or shall not apply to any specified cause of action to which the action relates

…”

Section 33(3): the relevant factors

“(3) In acting under this section the court shall have regard to all the circumstances of the case and in particular to—

(a)the length of, and the reasons for, the delay on the part of the plaintiff;

(b)the extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the plaintiff or the defendant is or is likely to be less cogent than if the action had been brought within the time allowed by section 11, by section 11A, or (as the case may be) by section 12;

(c)the conduct of the defendant after the cause of action arose, including the extent (if any) to which he responded to requests reasonably made by the plaintiff for information or inspection for the purpose of ascertaining facts which were or might be relevant to the plaintiff’s cause of action against the defendant;

(d)the duration of any disability of the plaintiff arising after the date of the accrual of the cause of action;

(e)the extent to which the plaintiff acted promptly and reasonably once he knew whether or not the act or omission of the defendant, to which the injury was attributable, might be capable at that time of giving rise to an action for damages;

(f)the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received.”

The list of relevant factors is “a curious hotchpotch”: Thompson v Brown [1981] 1 WLR 744

The discretion is nominal: Murray v Devenish [2018] EWHC 1895 (QB) at [73]

The Court’s discretion is “wide and unfettered”: Horton v Sadler [2007] 1 AC 307 at [26]

Carroll v Chief Constable of Greater

Manchester [2017] EWCA Civ 1992

Paragraph 42 gives a helpful 13-paragraph summary of the general principles. This analysis is now the starting point.

Some extracts…

“… 3. The essence of the proper exercise of the judicial discretion under section 33 is that the test is a balance of prejudice and the burden is on the claimant to show that his or her prejudice would outweigh that to the defendant: Donovan's case, p 477E; Adams v Bracknell Forest Borough Council [2005] 1 AC 76 , para 55, approving observations in Robinson v St Helens Metropolitan Borough Council [2003] PIQR P128 , paras 32 and 33; McGhie v British Telecommunications plc [2005] EWCA Civ 48 *8 at [45]. Refusing to exercise the discretion in favour of a claimant who brings the claim outside the primary limitation period will necessarily prejudice the claimant, who thereby loses the chance of establishing the claim…”

“…6. The prospects of a fair trial are important: A v Hoare , para 60. The Limitation Acts are designed to protect defendants from the injustice of having to fight stale claims, especially when any witnesses the defendant might have been able to rely on are not available or have no recollection and there are no documents to assist the court in deciding what was done or not done and why: Donovan's case, p 479A; Robinson's case, para 32; and Adams's case, para 55. It is, therefore, particularly relevant whether, and to what extent, the defendant's ability to defend the claim has been prejudiced by the lapse of time because of the absence of relevant witnesses and documents: Robinson's case, para 33; Adams's case, para 55; and A v Hoare , para 50…”

“…9. The reason for delay is relevant and may affect the balancing exercise. If it has arisen for an excusable reason, it may be fair and just that the action should proceed despite some unfairness to the defendant due to the delay. If, on the other hand, the reasons for the delay or its length are not good ones, that may tip the balance in the other direction: Cain's case, para 73. I consider that the latter may be better expressed by saying that, if there are no good reasons for the delay or its length, there is nothing to qualify or temper the prejudice which has been caused to the defendant by the effect of the delay on the defendant's ability to defend the claim…”

The basic questions:

1.Has the delay after the expiry of the limitation period significantly diminished D’s ability to defend the claim on liability or amount?

e.g. Has D lost witnesses or documentation?

Is a fair trial possible?

2.What is C’s reason for the delay? Is it excusable?

e.g. Has he been under a disability? Has he suffered poor health? Was he wrongly advised by his lawyers?

3.When was D first notified of the claim?

4.Considerations of proportionality: Is the claim of low value? Does the claim have a low prospect of success? Does C have a clear case against her legal advisors?

Carr v Panel Products (Kimpton) Limited[2018] EWCA Civ 190

• C was employed by D to operate machinery between 11.74 and 04.81.

• C developed Noise-Induced Hearing Loss. His date of knowledge was 2008. He issued a claim in 2013 – 2 years late.

• D had lost the evidence – but before expiry of the limitation period.

• S. 33 discretion exercised.

Ellis v Heart of England NHSFT [2018] EWHC 3505 (Ch); [2019] PIQR P8

• C claimed that he had received negligent medical treatment in February-March 2013.

• C initially agreed with D3 a 3-month extension of the limitation period.

• 7 months after the extension C issued the claim.


Gregory v Haynes [2020] EWHC 911 (Ch)

• C was employed by D as a roofer between 1959 and 1971/2, during which time he was exposed to asbestos.

• His date of knowledge was 11.08. The claim was issued in 2017 – 6 years late.

• Between 2011-14 C’s solicitors could not find insurers for D. Between 2014-17 C’s solicitors should have acted more swiftly.

• D had lost most of the evidence long before the expiry of limitation.


EXE v Governors of Royal Navy School [2020] EWHC 596 (QB)

• C had a sexual relationship in 1991 at age 14 with a kitchen porter employed by D. He was convicted for this.

• C brought a claim 18 years after the expiry of limitation. She claimed that she had in fact been raped.

• At trial her evidence was not credible.

• The porter could not be traced.

• There was very significant prejudice to both sides.

FXF v Ampleforth Abbey Trustees[2020] EWHC 791 (QB)

• C claimed to have been assaulted by a priest as a young child in 1968/9.

• She issued a claim 32 years after expiry of the limitation period.

• The priest had died. There was very limited evidence of what had happened.

• A fair trial was not possible.

Haringey LBC v FZO [2020] EWCA Civ 180

• Between 1980-82 a teacher at D’s school had a sexual relationship with C, for which he was convicted.

• C contended that his ongoing relationship with D, which lasted for a number of years after leaving school, was abusive.

• The claim was brought 25-30 years late.

• The Judge found that C’s delay was because he had been groomed and emotionally manipulated.

• There was sufficient evidence to decide the case – namely the accounts of C and the teacher.


The approach of appellate courts

McCombe LJ’s analogy of a shaky brick and an unsound foundation stone: Carr v Panel Products (Kimpton) Limited [2018] EWCA Civ 190.

Appellate courts will only interfere if there has been an error of principle. They will look at the judgment as a whole and draw inferences where necessary.

Questions

Rhian Griffith: What wording would you suggest a Defendant to use in responding to a Claimant when it is prepared to agree a limitation extension (eg to comply with Clin Neg Protocol) but wants to retain a limitation defence it already has?

SB: Something like: “D agrees that in any subsequent issue about limitation we will not rely upon any period of time that elapses between the date of this correspondence and x date.”

PS: Susanna's formula will work fine. I would add words to the effect of: “For the avoidance of doubt, the defendant reserves the right to rely on any limitation defence accrued up to the date of this correspondence”.


Questions

Charlotte Pritchard: When a Claimant has died during the duration of the claim in accordance with the limitation act, limitation will then be 3 years from the date of death (providing limitation hadn’t expired when the Claimant was alive) does it make any difference if a limitation moratorium was agreed whilst the Claimant was alive?

PS: It depends on the terms of the moratorium, really. Take these facts in an industrial disease case: C's date of knowledge 1.6.12, moratorium agreed 1.3.15 for 6 months to 1.9.15, C dies 1.8.15. My view would be that because D had waived the period from 1.3.15 to 1.8.15, it was still open to C to bring a claim on the date of death, so there is until 1.8.18 to bring the fatal claim.


Thank you for listening

Paul Stagg

[email protected]

Susanna Bennett

[email protected]

Next week: Sarah Prager and Conor Kennedy will be speaking about foreign road traffic

accident claims.

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