Limited Discoverability Exception
A “personal injuries” action in this context, is one where bodily injury is suffered as a result of negligence, nuisance or breach of duty. A personal injury claim includes any disease, any impairment of physical and mental conditions.
2004 reforms have changed the time limit for commencement of proceedings in respect of personal injuries to two years from the time that the right to bring the claim \”accrues\”. This is extended by certain periods while the case is being considered by the Injuries Board.
The Statute of Limitations (Amendment) Act 1991 reversed the effect of the Supreme Court decision in Hegarty v O’ Loughran in personal injury cases. That case may still apply outside of personal injury cases. The Supreme Court had followed earlier House of Lord’s cases, which were later reversed. Discoverability applies generally in England and Wales, by statute. The Irish Supreme Court confirmed in 2011, that apart from statute a discoverability test does not apply in negligence or other breach of duty cases.
The 1991 Act introduced a \’date of knowledge\’ test in relation to personal injuries cases. The right of action may be taken within two years of the date on which the action accrued or the date on which the claimant’s knowledge if the claimant does not know or have the means of knowledge of the claim that it has accrued. The legislation was re-enacted with amendments in 2015.
Claims for damages in respect of personal injuries to a person caused by negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or of a provision made by or under a statute or independently of any contract or any such provision) shall not be brought after the expiration of 2 years, from the date on which the cause of action accrued or the date of knowledge (if later) of the person injured”,
The period from the date when the claimant ceased to be under a disability or died, whichever event first occurred, is 2 years from the date when he ceased to be under a disability or died, whichever event first occurred,
Personal Injuries Claim
If any element of the claim relates to personal injuries, then the whole claim is now subject to a two-year time limit under the 2004 legislation. A claim outside this period may be permitted, only if the personal injuries element is abandoned entirely. There are different views on the extent to which this may be done and to which pleadings may be amended to facilitate the same.
Where the personal injuries claim is based on a breach of contract, which generally carries a six-year limitation period, this basis of claim may not be used as a substituted ground, if the claim is in substance, a claim for personal injuries based on negligence.
In accordance with general principles, a cause of action or claim accrues when a significant or nontrivial amount of damage is manifest. The general position (other than in personal injury cases) is that the cause of action may accrue, even though the prospective claimant is unaware of it and could not reasonably know or discover it.
Where the claim is based on trespass such a deliberate assault, a six-year time limit may apply. However, the date of knowledge test applies only to a claim based on negligence.
Clinical Negligence (Not Commenced)
The Legal Services Regulatory Act 2015 reinstates the pre-2004 Act limitations time periods for clinical negligence actions (as defined) from two years to three years. However, the relevant provision have not been commenced.
The period will remain at two years for injuries caused by negligence, nuisance or a person’s breach of duty, for example, most road traffic accidents.
Clinical negligence means anything done or omitted to be done in the provision of a health service by a health service provider in circumstances which could give rise to liability for damages for negligence in respect of personal injury or death. A clinical negligence action’ means an action for the recovery of damages brought by or on behalf of a person alleging that he or she, or a deceased person of whom he or she is a personal representative, has suffered personal injury or death as a result of clinical negligence, and against the health service provider alleged to have committed the act or omission giving rise to liability or any other person alleged to be liable in respect of that act or omission;
In this context ‘health service’ means—
- the carrying out of a clinical investigation, diagnosis, procedure, treatment or research,
- the provision of clinical advice or information, or
- the provision of clinical care;
A health service provider means a person whose name is on—
- the register of medical practitioners,
- a register maintained by the Dental Council,
- a register maintained by the Optical Registration Board,
- a register set up under the Pharmacy Act 2007 ,
The Injuries Board was established in 2004 in tandem with significant reforms to the law on personal injury claims. The 2004 Act reduced the limitation period to two years. However, the clock stops while the claim are before the Board. An additional six months applies after the Injuries Board authorisation.
Not all claims for personal injuries must be submitted to the Injuries Board. The types of claims are set out in the legislation and have been gradually extended. It applies to civil actions / claims arising from such claim claims arising from road traffic accidents, workplace accidents, so-called occupier’s liability claims (based on the “static” condition of a premises). Civil actions are claims for monetary damages in respect of a civil wrong causing personal injuries and/or personal injuries and property damage.
The Injuries Board procedure and the special Statute of Limitation period, does not apply to a separate action, bona fide brought for additional claims, which is not intended to circumvent the legislation. It does not apply to claims for breach of constitutional duty or under the European Convention on Human Rights. It does not apply to Gardi Síochána compensation applications. It has been held to apply to claims against the Motor Insurance Bureau of Ireland notwithstanding that such claims are in substance claims under the MIAB agreement.
The six-month extension after the conclusion of the Injuries Boards process applies only where the Statute of Limitations apples. It does not apply to certain other less common proceedings including in particular the two-year time limit on claims pending on death, applicable under the Civil Liability Act. It does not apply to certain statutory time limits applicable in respect of accidents on international means of transport.
The clock stops under the Statute of Limitations when an application is submitted to the Injuries Board. The application must be validly made in accordance with the rules prescribed under the legislation. The failure to comply with the requisite requirements (e.g. in relation to documents which must support the application) may invalidate the application, thereby removing the benefit of the Statute of Limitations suspension.
The application to the Injuries Board must be made in respect of all requisite defendant. The failure to do this may mean the claim cannot be taken in the courts, ultimately becomes “statute barred” (because the limitation period has run its course).
Date of Knowledge I
The Statute of Limitations Amendment Act 1991 provides for an extended limitations period, to two years after they the date of discoverability of the claim. The claim is discoverable on the date on which the claimant had the requisite knowledge. The date of knowledge is the date on which he first had knowledge of the following facts.
- that he had been injured;
- that the injury was significant;
- that it was attributable partly or wholly to an act or omission based on negligence, nuisance or breach of duty;
- the identity of the defendant;
- where the act or omission is that of a person other than the defendant, the identity of that other person and the additional facts which support the bringing of the action against the defendant.
Knowledge that any of the acts or omissions did or did not involve negligence, nuisance or breach of duty as a matter of law is not relevant to this context.
A longer time limit applies to claims brought by personal representatives or dependents of a deceased person.
The relevant state of knowledge is that of the claimant himself. However, knowledge includes knowledge that a person might reasonably be expected to acquire from facts observable or ascertainable by him or from facts ascertainable by him with the help of medical or other appropriate expert advice which is reasonable for him to seek.
A person is not fixed with knowledge of a fact ascertainable by him, only with expert advice so long as he has taken all reasonable steps to obtain, and where appropriate act on, appropriate advice. The person injured shall not be fixed with knowledge of a fact relevant to the injury, which failed to acquire as a result of the injury.
Questions may arise as to when it is reasonable to obtain expert reports and advice. This will depend on the particular case and circumstances. The question is whether it is reasonable for the person to seek advice. This may be so, even if he does not have the financial or other means to obtain that advice.
Date of Knowledge II
The test is not wholly objective. Account is taken of the personal characteristics of the person concerned. This includes facts and characteristics which may make it reasonable for him not to seek expert advice. However, in the main, the test is objective and personal circumstances other than actual disability will not generally be sufficient to prevent a claimant him from being deemed to know, that which expert advice would reasonably have disclosed.
Complex questions may arise in relation to the knowledge of an injury. This may occur, for example, where surgery has taken place, which is later found to have been unnecessary or harmful. An operation, may not be considered a personal injury in itself for this purpose, until something more is known of an injury that occurred during it or by reason of its wholly negligent nature. The Supreme Court, in a three to two decision, held that a unnecessary hysterectomy postponed the Statute of Limitations until the date when the defendant discovered that the hysterectomy was unnecessary.
Time starts as soon as the claimant is aware that the injury was significant. This may occur where an injury which was initially minor, becomes progressively more serious and significant over time. In such cases, the limitation period will commence to run at the point in time when the injury becomes significant. If a person knows that an injury is significant, it does not matter that he does not appreciate the significance of the injury or damage, provided that it is material.
The issue of a “significant” injury has been arisen in the context of abuse and sexual assault. There may be an awareness of an injury, but its significance may not be known, particularly where there is a later significant psychological impact. There have been differing approaches, but broadly, the courts have been open to finding a postponement of commencement of the limitation period, where there has been delayed psychological consequences.
The claimant must know that the injury is attributable to an act or omission which constituted the negligence or other breach of duty. He must have sufficient knowledge to make it reasonable to begin to investigate, whether he has a case against the defendant. He must know that the loss,, damage or injury, is capable of being attributed to that person\’s negligence, so that further advice and investigation may disclose the position. He need not necessarily have enough to frame a claim in full, provided that there are sufficient grounds for further expansion and elaboration of the claim.