The Ticking Clock: Time Bar In Scottish Clinical Negligence

In this recent Glasgow Sheriff Court decision of Joanna Cox v Optimax Clinics Limited & Others [2026] SC GLA 43, the court considered whether a claim for damages following LASIK eye surgery was time barred under section 17 of the Prescription and Limitation (Scotland) Act 1973. The case provides important guidance on the level of awareness required to start the clock on limitation periods in clinical negligence actions.

Background

The pursuer, Joanna Cox, underwent three LASIK eye surgeries at Optimax Clinics Limited’s (the first defender and hereafter “Optimax”) Glasgow clinic between August 2002 and August 2004, performed by Dr Berry and Dr Ul-Haq (the second and third defenders, ophthalmologists working for Optimax). By June 2009, she required glasses and consulted an ophthalmologist. Her eyesight continued to deteriorate and by April 2012, she started suffering from double vision. After consulting several specialists and receiving a diagnosis of post-LASIK ectasia in June 2012, Ms Cox ultimately raised legal proceedings on 26 June 2015.

The key issue in this case was whether Ms Cox’s claim was raised within the required three-year limitation period, or if it was time barred because she either was, or ought reasonably to have been, aware of the relevant facts giving rise to her right to claim before that period expired.

Legal issues

The central issue was the application of section 17(2)(b) of the 1973 Act: specifically, when the pursuer became aware (or could reasonably have become aware) that:

• Her injuries were sufficiently serious to justify bringing an action for damages;
• The injuries she suffered were attributable to an act or omission; and
• That the injuries were attributable to the acts or omissions of Optimax and the ophthalmologists.

The court was required to determine whether Ms Cox knew, or ought to have known, of these matters more than three years before raising her action in June 2015.

Evidence and arguments

Ms Cox argued that she did not become aware of the seriousness of her injuries, or their connection to the LASIK surgeries, until after a formal diagnosis of post-LASIK ectasia in June 2012. She contended that earlier symptoms, such as deteriorating vision and the need to wear glasses, did not provide her with the necessary awareness, and that her consultations with various clinicians did not definitively link her condition to the surgeries until the diagnosis.

The defenders maintained that Ms Cox was, or ought to have been, aware of the relevant facts much earlier. They pointed to her consultations in 2009, when she was advised to contact Optimax about her vision problems. Crucially, they also relied on her consultation with an ophthalmologist on 23 May 2012, who advised her that her condition was likely attributable to her previous LASIK surgery. The defenders argued that the law does not require a pursuer to have a definitive diagnosis, only a “modest level of awareness” that their injuries may be attributable to the treatment.

Decision

Sheriff Taylor found in favour of the defenders, concluding that the claim was time barred. The court accepted the defenders’ evidence that Ms Cox was aware, by 23 May 2012, of the seriousness of her injuries and their connection to the LASIK surgery. Sheriff Taylor noted that a precise diagnosis is not required to start the limitation clock. Instead, once a pursuer is aware of a real possibility that their injuries are attributable to the treatment, the clock begins to run.

In reaching this decision, the court emphasised that Ms Cox had been advised by clinicians, and had herself communicated to the clinic, that her symptoms were considered to be linked to her previous eye surgery. The Sheriff also highlighted the importance of contemporaneous records and the weight to be given to them, particularly when memories have faded with time.

Key Legal takeaways

• Awareness threshold: A “relatively modest level of awareness” is sufficient to trigger the limitation period. The pursuer does not need a definitive diagnosis, only knowledge that their injuries may be attributable to the treatment.
• Weight of contemporaneous evidence: The court may place greater weight on contemporaneous documentation and professional records, viewing them as more reliable than recollections made years later, particularly where the pursuer has difficulty recalling events or provides conflicting accounts. This underlines the importance for practitioners of maintaining accurate and comprehensive records and patient files.

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.