Limitation

There are statutory rules limiting the time in which clinical negligence actions can be brought. Where an action is for damages for personal injury arising as a result of negligence, the primary limitation period is 3 years from the date on which the cause of action started ie the injury, or date of knowledge (if later) of the person injured.

In respect of claims being brought concerning allegations of negligence arising during birth, the date that the cause of action commences is the date of that child's birthday.

Where the injured person is a child, the 3-year limitation period does not begin to run until he/she turns 18 years of age. This is because a child is classed as a person under a disability and time does not run against a person under a disability until the disability ceases. For example, if a child suffers injury during a routine operation at the age of 6, the 3-year limitation period will start to run upon his/her 18th birthday even though 12 years may have passed since the injury occurred.

If a child suffers from cerebral palsy involving physical disabilities but not mental disabilities, that child would have until his/her 21st birthday to start a claim. There are exceptions if he/she is unable to bring a claim within such a period of time, but these are more and more difficult to prove due to the publicity that awards for damages in a cerebral palsy claims now receive via the media.

An exception would be if a child suffers from cerebral palsy and has both physical and mental disabilities, then depending upon the severity of the mental disabilities, he/she may be classed in law as a person under a disability ie. a person who shall never be capable of managing or administering his/her property and affairs by reason of that mental disorder. In such cases, there is no limit upon the time in which he/she can start a claim.

If a child/adult dies whilst pursuing a claim, his/her personal representatives or dependants may bring a claim within 3 years of the date of his/her death.

The Court has the right to exercise its discretion when faced with an possible action when the limitation period has expired. In exercising its discretion, it has a duty to balance the prejudice to a Claimant having the action dismissed out of time against the prejudice to a Defendant in allowing an action to proceed. The Court must take into account all the circumstances pertinent to the proposed action and in particular the following.

Length of delay on the Claimant's part
Reason for a delay on the Claimant's part
Extent to which the Claimant or the Defendant's evidence will be less convincing than if the action had commenced within the limitation period
The Defendant's conduct after the cause of action arose
The length of any disability of the Claimant arising after the cause of action accrued
The extent to which the Claimant acted promptly and reasonably once he/she knew whether or not the actual admission of the Defendant to which his/her injuries were attributable might be capable at that time as giving rise to an action for damages
Steps taken by the Claimant to get medical, legal or other expert advice and the nature of any such advice
It is wise to begin investigating a claim as soon as possible, particularly cases involving children simply because medical records may not be available if several years pass since the injury occurred

For more legal information on birth injury and cerebral palsy cases please contact Nicola Castle.