Amanda Hopkins, Solicitor
Limitation is a key issue to consider when first taking instructions from a potential new client in a personal injury claim. When was the accident? How long ago was the operation? When did you first notice the symptoms? Depending on the type of case, these are usually the first questions we will put to a potential new client. In doing so we are investigating whether the case will fall foul of s11 of the Limitation Act 1980, which provides for a three-year period
from the date on which the cause of action accrued or the date of knowledge (if later) of the person injured.
Missed opportunities
In straightforward personal injury claims, deciding whether a case is within the primary limitation period is usually not problematic. It is generally the case that the client was in relatively good health before the accident, but after it they have, for example, a broken leg. There is no doubt about the cause of action or the client’s knowledge that their broken leg was caused by the accident. All they need to do is make sure that they have contacted you within the three-year limitation period, and preferably not a week before it expires! This sounds simple, but to clients who are not lawyers it is not obvious. In the current climate of internet access and exposure to television advertisements clients are more knowledgeable about their rights, but the three-year rule is still often overlooked.
Since the recession began, I have noticed an increase in the number of new enquiries where the personal injury was a result of an accident that occurred more than three years ago. A typical scenario would involve a client who had an accident several years earlier. They sustained a fracture to their ankle as a result of their working conditions or practices. The client says their employers were very good to them and paid them in full for their time off. They were moved to a desk job on the same rate of pay as before and the fact that their ankle still gave way was not an impediment. However, with the credit crunch they have been made redundant and their weak ankle is now a bar to securing alternative employment. The bills are piling up and they turn to you to secure compensation while they are out of work. They tell you that they would not normally make a claim. They either believe that their employer has treated them well up to this point or that they were worried about losing their job if they made a claim while still employed. Now they have lost their job they have nothing to lose. Unfortunately, all too often they call too late and the fact that they did not know about the three-year limitation period will not help them. We can sympathise, but inevitably the client will be turned away.
Date of knowledge
Of course, not all cases will be as straightforward. I recently had an enquiry where the client had been diagnosed with vibration white finger (VWF) in February 2008. Before I met the client I obtained his medical records to confirm the diagnosis and have a basis for conducting the interview. When I received them they were very sparse, consisting of five or six pages. There was just one entry in February 2008, where the client had described a long history of VWF. There were no relevant entries before or after. Alarms bells began to ring when I read the description of a ‘long history’ of VWF. This would suggest that my client’s date of knowledge regarding his injuries pre-dated the entry in February 2008, and that limitation would be an issue. However, I was intrigued by the fact that there had been no mention of such symptoms before this one entry.
I met the client to take a detailed history and explore his date of knowledge. It is worth reproducing s14 of the 1980 Act in full here:
(1) In sections 11 and 12 of this Act 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.
I was therefore trying to establish when my client first realised he was suffering the effects of VWF, whether he knew this was a significant injury, and whether he knew this was as a result of his working conditions.
I asked my client to explain what his symptoms were and when they had begun. He gave a history of working as a tree surgeon for the past 15 years, using chainsaws and hedge-trimmers without protective equipment, with no maintenance of the tools and with pressure to work for lengthy periods of time without breaks to fulfil his target. He had experienced tingling in his fingers for the past ten years. For the majority of this time it had come and gone just when using the tools. More recently this became constant and of a greater severity, so that it was now extremely painful to use the power tools. Even shaving using an electric shaver was unbearable for him. His boss had recently made redundancies and my client was scared that he would soon be made redundant. In view of his condition he was worried about being handicapped on the labour market should he lose his job.
I compared his oral history with his GP records and asked why he had not sought medical treatment prior to February 2008. His answer was rather surprising. He said he had been approached by a claims company asking if he had recently been involved in a road traffic accident. He said no. The caller then asked what his job was. When told he was a tree surgeon using vibrating equipment the caller asked if he suffered from VWF. My client had never heard of this and asked the caller to explain. My client was shocked to learn that he probably had this condition and that there was little treatment. He had thought this was just the side effect of his job. He did not know it could progress in its severity and that it could be permanent. He also said he did not know he could bring a claim.
My client went to his GP and the diagnosis was confirmed. He has continued in his employment as he loves his job and does not know what else he could do. He is aware that continuing to use the vibrating tools is making his condition worse and he has always attributed the symptoms to his use of them. Verbal complaints have been made to his employer but not pursued for fear of losing his job. As redundancy is likely he now wishes to make a claim.
So when was my client’s date of knowledge? When the symptoms began ten years ago? When the symptoms became more serious? Contemporaneous evidence of this is non-existent, as my client did not seek medical attention. Should the date be when the claims handler called him, or when he received diagnosis from his GP in February 2008? I am progressing the claim on the basis of my client’s knowledge being in February 2008. Fortuitously, this is also when he describes his symptoms as becoming more severe. However, I am expecting to receive stiff opposition from the defendants, who will argue that a reasonable person would have known there was something significantly wrong before being prompted to visit his GP by the claims handler.
Case law
There is a plethora of case law surrounding the issue of a client's date of knowledge. Essentially the cases prove that the matter is very much case-sensitive, although they offer useful guidance on what will be considered reasonable. In the event that a claimant fails to prove that their date of knowledge falls within the three-year period, arguments will be made under s33 of the 1980 Act for the court to disapply s11, as it would be just and equitable to do so. Since the decision in A v Hoare [2008] it is hoped that courts will look at how fair it is to disallow a claim just because of a technicality.
This case has been commented on widely elsewhere and I do not propose a detailed analysis. However, in these times of recession A v Hoare could prove unusually helpful. Take the tortfeasor who has not renewed or taken out insurance. They are victims of the credit crunch and go out of business. For the person injured as a result of their negligence there is little point in bringing a claim when there is no money to satisfy judgment. The tortfeasor gets back on its feet again after the recession and would now be able to pay compensation, but the three-year limitation period has expired. Using the same arguments Mrs A used in A v Hoare, a claimant could argue that it would be just and equitable to waive limitation and allow a claim to proceed out of time.
Planning ahead
One final note of caution: the client should give an early indication of an intention to bring a claim, even if proceedings are to be delayed due to the financial circumstances of the defendant. This is with a view to counteracting the defendant’s argument that they have been prejudiced due to their loss of a limitation defence.
Amanda Hopkins is a solicitor at Anthony Gold who specialises in personal injury and clinical negligence cases.
