LPC Law Notes Personal Injury and Clinical Negligence Notes
A collection of the best LPC Personal Injury and Clinical Negligence notes the director of Oxbridge Notes (an Oxford law graduate) could find after combing through dozens of LPC samples from outstanding students with the highest results in England and carefully evaluating each on accuracy, formatting, logical structure, spelling/grammar, conciseness and "wow-factor". In short these are what we believe to be the strongest set of Personal Injury and Clinical Negligence notes available in the UK thi...
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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
claims damages for negligence, nuisance or breach of duty (this includes assault – R v Hoare [2008])
AND that claim consists of or includes a claim for personal injuries
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
Dedicated hearing
Advantages – dealt with one way or another at an early stage
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
First day – can deal with limitation
Advantages – costs are included in the costs of preparing for trial
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:
Under 18 OR
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
So where a child is injured, limitation runs from his 18th birthday and expires on his 21st birthday
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
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)
If there is more than 1 personal representative, time runs from earliest date
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
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
So if the deceased’s claim is statute barred, so is the dependant’s
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)
But the dependant can always apply for discretion under s. 33
Actual knowledge
Sometimes it is not clear when the injury occurred because:
The treatment received was ongoing
The injury does not heal as expected
The worker might not be aware that the illness was caused at work
It may be months after the event before the claimant suspects alleged negligence
In this situation, the claimant has 3 years from the date of knowledge
Under s. 14, the date of knowledge is the date on which the claimant first knew:
That the injury in question was significant AND
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
The identity of the defendant AND
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’
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
The court considers the gravity of the injury and not its effect or perceived effect on the personal life or career of the claimant
The date of knowledge is not affected by the fact that the consequences turned out to be more serious than was originally thought
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
‘Attributable’ means ‘capable of being attributable to’
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))
The patient had knowledge earlier e.g. when treatment failed to produce cure
The worker had knowledge when the symptoms emerged
The defendant will argue that the claimant did know/should have known earlier
The claimant cannot argue he did not have knowledge due...
Buy the full version of these notes or essay plans and more in our Personal Injury and Clinical Negligence Notes.
A collection of the best LPC Personal Injury and Clinical Negligence notes the director of Oxbridge Notes (an Oxford law graduate) could find after combing through dozens of LPC samples from outstanding students with the highest results in England and carefully evaluating each on accuracy, formatting, logical structure, spelling/grammar, conciseness and "wow-factor". In short these are what we believe to be the strongest set of Personal Injury and Clinical Negligence notes available in the UK thi...
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