On 9th July 2001 the Law Commission published its seventh programme of law reform. Item 2 of that programme concerned the Commission’s intention to investigate several problems inherent in the current law on limitation. We consider here how the Law Commission’s proposals might affect clinical negligence actions.
The Commission makes several criticisms of the current law, but expresses particular concern that the law takes insufficient account of the claimant’s knowledge of the relevant facts, leading to unfairness in some circumstances.
PRIMARY LIMITATION PERIOD OF THREE YEARS
The Commission recommends for all cases a primary limitation period of three years starting from the date the claimant knows, or ought reasonably to know:
- the facts giving rise to the cause of action;
- the identity of the defendant; and
- that the injury is significant.
Under existing law the three year primary limitation period for personal injury claims normally runs from the date on which the cause of action accrued. Only in specific exceptions will time run from the date of knowledge of the injured person. The change proposed would clearly impact on clinical disputes; it is relatively easy to establish the date of the cause of action, but considerably more difficult to establish accurately the date of the claimant’s knowledge. Arguably this risks injustice to the defendant.
The Commission proposes that a claimant will be deemed to know that the injury is significant if:
- the claimant knows the full extent of his loss or
- a reasonable person would think that the injury justifies a civil claim.
Establishing the date of knowledge will involve an assessment of both "actual" and "constructive" knowledge.
Actual knowledge will not be defined in the proposed legislation; it will be treated as a straightforward issue of fact as to what the claimant knew and when - the test used by Brooke LJ in Spargo v North Essex District Health Authority 1 . In the absence of actual knowledge, constructive knowledge will start the three year period. Constructive knowledge will arise when the claimant’s circumstances and abilities are such that he ought reasonably to have known the relevant facts. This reflects the current law.
The Commission rightly concluded that to rely entirely on actual knowledge would allow the claimant the luxury of delaying reasonable investigations.
LONG STOP LIMITATION PERIOD OF 10 YEARS
For non-personal injury cases the Commission recommends a long stop limitation period of 10 years from accrual, after which claims become statute-barred irrespective of the claimant’s knowledge.
Personal injury claims are excluded from the long stop to avoid injustice to claimants suffering from latent conditions such as an asbestos-related disease or post-event trauma. In Various Claimants v Bryn Alyn Community Homes Limited 2 , many claims arising out of physical and/or sexual abuse between 1973 and 1991 in children’s homes in North Wales were not brought for many years because of (among other things) the time needed to recover from the trauma of the abuse.
FACTORS EXTENDING OR EXCLUDING THE LIMITATION PERIODS
Currently the limitation period can be extended for a considerable period of time and sometimes indefinitely for claimants under a disability. The problems for defendants are obvious, not least as to how long records should be retained. In many cases defendants can face very stale claims, sometimes after the original records have been destroyed.
Under the Limitation Act 1980, "disability" extends the limitation period in two situations:
- where the claimant is a minor;
- where the claimant lacks mental capacity.
For minors, the Commission largely recommends no change, namely that, until the claimant is aged 18, the primary limitation period will not run. For adult claimants lacking capacity, the Commission suggests the three year period should only start after a protection period of 10 years:
- from the accrual of the cause of action; or
- if later, from the onset of the lack of capacity,
but only where the claimant’s representative adult has knowledge (regarded as the knowledge of the claimant). Such a change would provide some certainty currently unavailable to defendants.
If the claimant is a minor and also lacks mental capacity, the claimant will be protected until age 18 and will also have the benefit of the 10 year protection period. If that period expires during the claimant’s minority and adult representatives have the requisite knowledge, the three year limitation will start at age 18. In other cases, the claimant has the benefit of the full 10 years, followed by three years from:
- the expiry of the 10 years;
- or date of knowledge of the adult representative, if later.
The benefit for defendants is that there is a limit, albeit still potentially very distant.
THE COURT’S DISCRETION
There is no change here for clinical negligence claims. The Commission’s recommendation is to remove the court’s discretion under section 33 Limitation Act 1980 for all claims other than those involving personal injuries. The Commission considered judicial flexibility more important in personal injury cases than for other claims. Whether that is so in every case may be debatable.
CONCLUSION
We await the government’s decision as to whether any of these recommendations are taken up in future legislation. Limitation is not an especially pressing political issue, so this may well take some time. Furthermore, the recommendations are so complex that they may never reach the statute book. Even if implemented, they will not see an end to satellite litigation concerning claimant’s date of knowledge, in fact they may increase it. However, there may be an end to the current situation where claimants who lack capacity face no time limit at all. That at least would be better news for defendants.
FOOTNOTES
- (1997) 8 Med LR 125
- LTL 29/06/2001
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
