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Limitation Additional Claims Notes

This is a sample of our (approximately) 9 page long Limitation Additional Claims notes, which we sell as part of the Personal Injury and Clinical Negligence Notes collection, a Distinction package written at Cambridge/Oxilp/College Of Law in 2014 that contains (approximately) 63 page of notes across 8 different document.

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Limitation Additional Claims Revision

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LIMITATION ADDITIONAL CLAIMS TIMEFRAMES IN LITIGATION The limitation period and when to deal with limitation-Applicable to personal injury and clinical negligence - s. 11 and 12 Limitation Act 1980 Where the claimant o claims damages for negligence, nuisance or breach of duty (this includes assault - R v Hoare [2008]) o AND that claim consists of or includes a claim for personal injuries o the claimant must commence his claim (ie. claim form issued/received by court to be issued) within 3 YEARS from (s. 11(4))
? the date on which the cause of action accrued - s. 11(4)(a) OR
? the date of knowledge of the person injured - s. 11(4)(b)
? whichever is the earliest The day on which the cause of action accrued is excluded when calculating the 3 years If the last day of the period is a Saturday, Sunday or Bank Holiday, time is extended until the next day when the court is open and the claim can be issued When the 3 years expires, the claimant is not prohibited from commencing proceedings BUT defendant may seek to have claimant's claim struck out on grounds: statute barred The claimant may then apply to the court for limitation to be disapplied under s. 33 LA Dealing with limitation as preliminary issue o Dedicated hearing o Advantages - dealt with one way or another at an early stage o Disadvantages - hearing can involve a fair amount of time and money and the evidence becomes a rehearsal of the eventual trial Dealing with limitation at trial o First day - can deal with limitation o Advantages - costs are included in the costs of preparing for trial o Disadvantages - parties have a degree of uncertainty up until the day of trial and for defendants, many judges reluctant to dismiss on basis of limitation

Persons under a disability-

s. 38(2) LA 1980 - a person is under a disability while he is: o Under 18 OR o Lacks capacity within the meaning of the Mental Capacity Act 2005 to conduct proceedings s. 28(6) - a person under a disability may bring a claim at any time up to 3 years from the date when he ceased to be under a disability o So where a child is injured, limitation runs from his 18th birthday and expires on his 21st birthday o Where a person lacks capacity, limitation is ONLY delayed if he was so disabled when the cause of action first accrued

Claims following fatal accidents-

Claims under the Law Reform (Miscellaneous Provisions) Act 1934 o Where a claim is brought on behalf of the deceased's estate, s. 11(5) LA provides that if the injured person dies before expiration of limitation period of 3 years as set out in s. 11(4), the limitation period shall be 3 years from:
? The date of death OR
? The date of the personal representative's knowledge (if later) o If there is more than 1 personal representative, time runs from earliest date o If the person dies after expiry of s. 11(4) limitation period without commencing proceedings, the claim is statute-barred (although the court can exercise its s. 33 discretion) Claims under the Fatal Accidents Act 1976 o s. 12(1) LA - a claim under FAA 1976 cannot be brought if death occurred when the person injured could not maintain a claim and recover damages - whether because of limitation of any other reason o So if the deceased's claim is statute barred, so is the dependant's o If the claim is not already statute-barred, s. 12(2) provides that the limitation period for the dependants is 3 years from:
? The date of death OR
? The date of knowledge of the person for whose benefit the claim is brought (if later) o But the dependant can always apply for discretion under s. 33

Actual knowledgeSometimes it is not clear when the injury occurred because: o The treatment received was ongoing o The injury does not heal as expected o The worker might not be aware that the illness was caused at work o It may be months after the event before the claimant suspects alleged negligence o In this situation, the claimant has 3 years from the date of knowledge

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Under s. 14, the date of knowledge is the date on which the claimant first knew: o That the injury in question was significant AND o 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 o The identity of the defendant AND o If alleged act/omission was that of someone other than defendant, identity of that person AND additional facts supporting bringing of an action against the defendant The subjective test is to be applied - what did the claimant know and not what would a reasonable layman realise - Spargo v North Essex HA
[1997]
The claimant may be fixed with actual knowledge of certain facts even if a medical expert has advised him that this was not the case - Sniezek v Bundy Ltd (2000) The injury was 'significant' o s. 14(2) - injury is significant if the claimant would reasonably have considered it sufficiently serious to justify instituting proceedings against a defendant who did not dispute liability and was able to satisfy a judgment o The court considers the gravity of the injury and not its effect or perceived effect on the personal life or career of the claimant o The date of knowledge is not affected by the fact that the consequences turned out to be more serious than was originally thought o With multiple illnesses arising from the same events the latest injury is the injury in question and date of knowledge runs from this Attributable to the act or omission o 'Attributable' means 'capable of being attributable to' o Knowledge of an 'act or omission' does not have to include knowledge that the act/omission is actionable in law

Constructive knowledge-

The defendant may argue that the claimant had actual knowledge earlier OR should have obtained it earlier - (s. 14(3)) o The patient had knowledge earlier e.g. when treatment failed to produce cure o The worker had knowledge when the symptoms emerged o The defendant will argue that the claimant did know/should have known earlier The claimant cannot argue he did not have knowledge due to his ignorance of the law or because he failed to make further enquiries or seek advice Objective test - constructive knowledge includes knowledge which the reasonable man in the same circumstances might reasonably have been expected to acquire from facts: o Observable or ascertainable by him or o Observable or ascertainable by him with the help of medical or other appropriate expert advice which it is reasonable for him to seek o BUT a person shall not be fixed under this subsection with knowledge of a fact ascertainable only with the help of expert

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