PI Time Limits

Med Neg /Personal Injury Claims

The statute of limitations for cases of medical negligence is two years. This period runs from the date of accrual of the cause of action. Generally, see the section on the statute of limitations. This is either the date on which the damage occurred or the date on which it was discoverable.

A person shall, for the purpose of bringing an action—

• founded on tort in respect of an act of sexual abuse committed against him or her at a time when he or she had not yet reached full age, or
• against a person (other than the person who committed that act), claiming damages for negligence or breach of duty where the damages claimed consist of or include damages in respect of personal injuries caused by such act,

be under a disability while he or she is suffering from any psychological injury that—

• is caused, in whole or in part, by that act, or any other act, of the person who committed the first-mentioned act, and
• is of such significance that his or her will, or his or her ability to make a reasoned decision, to bring such action is substantially impaired.

This section applies to actions referred to whether the cause of action concerned accrued before or after the passing of the Statute of Limitations (Amendment) Act, 2000, including actions pending at such passing.

Sex Abuse

‘An act of sexual abuse’ includes—

• any act of causing, inducing, or coercing a person to participate in any sexual activity,
• any act of causing, inducing, or coercing the person to observe any other person engaging in any sexual activity, or
• any act committed against, or in the presence of, a person that any reasonable person would, in all the circumstances, regard as misconduct of a sexual nature:

Provided that the doing or commission of the act concerned is recognised by law as giving rise to a cause of action;

‘Full age’ means—

• in relation to a person against whom an act of sexual abuse was committed before the commencement of the Age of Majority Act, 1985, 21 years, and
• in relation to a person against whom an act of sexual abuse was committed after such commencement, full age within the meaning of that Act;

‘Professional legal advice’ means advice given by a practising barrister or solicitor in circumstances where the person to whom the advice was given sought such advice for the purpose of bringing or prosecuting an action to which subsection (1) applies, whether such an action was brought or not.

Inordinate Delay

Separate from the principle of limitations, there is the possibility that an inordinate and inexcusable delay in commencing proceedings may cause the court to strike out a claim even if it is within the statute of limitations. Generally, see the sections on delay in the context of litigation.

Because of the discoverability rule, there was the possibility of claims in personal injuries many decades after the particular incident. In some cases, the courts have held that there is inordinate and inexcusable delay in commencing proceedings. There may also be inordinate and inexcusable delay after proceedings are commenced in the prosecution of the proceedings.

The courts consider the prejudice to the defendant and the difficulty the defendant may have in defending a claim many years, and more usually decades, later. Records may be lost. Witnesses may have died. Recollections may have faded.

Limitation Period

The statute of limitations is a defence to the commencement of claims after the limitations period has passed. In the case of personal injuries, the general limitation period is two years. However, uniquely in the context of personal injuries, there is a second test based on discoverability. This is the date on which the plaintiff had knowledge that he or she suffered a significant injury.

In the case of a minor or person under a disability, time does not begin to run until they cease to be under the disability. A minor is a person under 18 years. Therefore, in principle, time does not run until the person reaches 18 years.

Other disabilities would require significant mental disability and incapacity.

Death and Fatal Injuries

In the case of fatal injuries, personal representatives have a period of two years from the date of death to commence proceedings in relation to claims that existed at the person’s death. It is two years from the date of death or the date of knowledge that the death was attributable to the act or omission giving rise to the claim.

This applies only to claims which accrued to the deceased in his or her lifetime. However, if the underlying claim was statute-barred at the date of death, it is not revived. Once a claim is settled before death, it is extinguished.

If a person dies in the course of proceedings, the dependants may or may not be entitled to bring separate proceedings in respect of loss of dependency, etc. Certain types of claims, particularly for personal injury, are not recoverable by dependants.

Where the cause of death is the subject of the personal injury, the position is more complicated. Generally, it remains that new proceedings would be issued. If proceedings are the subject of an appeal, certain elements of the claim may continue in the name of the representatives. They may be reconstituted in the name of the personal representative. Certain elements may not be recoverable, including those for personal injuries to the deceased.

Discoverability

See generally the section on limitations and personal injuries in relation to the date of knowledge on discoverability. In the context of medical negligence, the issue may be complex as many years may have passed between the date of the treatment or operation and the discovery of its claimed consequences.

A person must not have the requisite information for the purpose of discoverability until they know the following:

• That they were injured, and it was significant
• That it was attributable in whole or in part to the act or omission (negligence, nuisance, or breach of duty)
• The identity of the defendant

If it is alleged that the act or omission is that of a person other than the defendant, they must also know the identity of that person and additional facts supporting the claim.

Each of these elements raises potentially complex issues in particular contexts. What is or is not serious is a question of degree. Something may become apparent when it becomes chronic and evident. It may arise when subsequent treatment is necessitated.

The date of knowledge requires that the claimant knows the defendant was the one negligent. When a person has knowledge that would lead a reasonable person to conclude the identity of the defendant, that would be sufficient. There must be knowledge of the cause rather than knowledge of the events by themselves.

The knowledge must be sufficient to justify taking steps to issue proceedings. This may require advice from another person, such as an expert medical practitioner.

Other Time Limits

Different time limits apply to other types of cases. For cases based on trespass and battery, the general time limit is six years. There may be trespass where there is an absence of informed consent.

There are special time limits respecting defective products. Generally, the claim is to be taken three years from the date on which the claim accrued or the date on which the claimant became aware or should have become aware of the defect in the product and the identity of the producer. This is subject to an overall 10-year limit from the date on which the producer put the actual product into circulation.

The identity of the correct defendant will depend on the circumstances. This will be relevant to the particular medical practitioner and institution.