{"id":21315,"date":"2018-09-03T21:57:10","date_gmt":"2018-09-03T21:57:10","guid":{"rendered":"https:\/\/legalblog.ie\/personal-injuries\/"},"modified":"2023-07-02T10:05:04","modified_gmt":"2023-07-02T10:05:04","slug":"personal-injuries","status":"publish","type":"post","link":"https:\/\/legalblog.ie\/personal-injuries\/","title":{"rendered":"Personal Injuries"},"content":{"rendered":"<div id=\"ez-toc-container\" class=\"ez-toc-v2_0_63 counter-hierarchy ez-toc-counter ez-toc-grey ez-toc-container-direction\">\n<div class=\"ez-toc-title-container\">\n<p class=\"ez-toc-title \" >Table of Contents<\/p>\n<span class=\"ez-toc-title-toggle\"><a href=\"#\" class=\"ez-toc-pull-right ez-toc-btn ez-toc-btn-xs ez-toc-btn-default ez-toc-toggle\" aria-label=\"Toggle Table of Content\"><span class=\"ez-toc-js-icon-con\"><span class=\"\"><span class=\"eztoc-hide\" style=\"display:none;\">Toggle<\/span><span class=\"ez-toc-icon-toggle-span\"><svg style=\"fill: #999;color:#999\" xmlns=\"http:\/\/www.w3.org\/2000\/svg\" class=\"list-377408\" width=\"20px\" height=\"20px\" viewBox=\"0 0 24 24\" fill=\"none\"><path d=\"M6 6H4v2h2V6zm14 0H8v2h12V6zM4 11h2v2H4v-2zm16 0H8v2h12v-2zM4 16h2v2H4v-2zm16 0H8v2h12v-2z\" fill=\"currentColor\"><\/path><\/svg><svg style=\"fill: #999;color:#999\" class=\"arrow-unsorted-368013\" xmlns=\"http:\/\/www.w3.org\/2000\/svg\" width=\"10px\" height=\"10px\" viewBox=\"0 0 24 24\" version=\"1.2\" baseProfile=\"tiny\"><path d=\"M18.2 9.3l-6.2-6.3-6.2 6.3c-.2.2-.3.4-.3.7s.1.5.3.7c.2.2.4.3.7.3h11c.3 0 .5-.1.7-.3.2-.2.3-.5.3-.7s-.1-.5-.3-.7zM5.8 14.7l6.2 6.3 6.2-6.3c.2-.2.3-.5.3-.7s-.1-.5-.3-.7c-.2-.2-.4-.3-.7-.3h-11c-.3 0-.5.1-.7.3-.2.2-.3.5-.3.7s.1.5.3.7z\"\/><\/svg><\/span><\/span><\/span><\/a><\/span><\/div>\n<nav><ul class='ez-toc-list ez-toc-list-level-1 ' ><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-1\" href=\"https:\/\/legalblog.ie\/personal-injuries\/#Limited_Discoverability_Exception\" title=\"Limited Discoverability Exception\">Limited Discoverability Exception<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-2\" href=\"https:\/\/legalblog.ie\/personal-injuries\/#Personal_Injuries_Claim\" title=\"Personal Injuries Claim\">Personal Injuries Claim<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-3\" href=\"https:\/\/legalblog.ie\/personal-injuries\/#Clinical_Negligence_Not_Commenced\" title=\"Clinical Negligence (Not\u00a0 Commenced)\">Clinical Negligence (Not\u00a0 Commenced)<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-4\" href=\"https:\/\/legalblog.ie\/personal-injuries\/#Injuries_Board\" title=\"Injuries Board\">Injuries Board<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-5\" href=\"https:\/\/legalblog.ie\/personal-injuries\/#Date_of_Knowledge_I\" title=\"Date of Knowledge I\">Date of Knowledge I<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-6\" href=\"https:\/\/legalblog.ie\/personal-injuries\/#Date_of_Knowledge_II\" title=\"Date of Knowledge II\">Date of Knowledge II<\/a><\/li><\/ul><\/nav><\/div>\n<h3><span class=\"ez-toc-section\" id=\"Limited_Discoverability_Exception\"><\/span>Limited Discoverability Exception<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>A \u201cpersonal injuries\u201d 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.<\/p>\n<p>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 \\&#8221;accrues\\&#8221;.\u00a0 This is extended by certain periods while the case is being considered by the Injuries Board.<\/p>\n<p>The Statute of Limitations (Amendment) Act 1991 reversed the effect of the Supreme Court decision in Hegarty v O\u2019 Loughran in personal injury cases. That case may still apply outside of personal injury cases<em>.<\/em> The Supreme Court had followed earlier House of Lord\u2019s 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.<\/p>\n<p>The 1991 Act introduced a \\&#8217;date of knowledge\\&#8217; test in relation to personal injuries cases.\u00a0 The right of action may be taken within two years\u00a0 of the date on which the action accrued or the date on which the claimant\u2019s 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.<\/p>\n<p>Claims\u00a0 for \u00a0damages 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\u201d,<\/p>\n<p>The period from the date when the claimant \u00a0ceased 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,<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Personal_Injuries_Claim\"><\/span>Personal Injuries Claim<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>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.\u00a0 A claim outside this period may be permitted, only if the personal injuries element is abandoned entirely.\u00a0 There are different views on the extent to which this may be done and to which pleadings may be amended to facilitate the same.<\/p>\n<p>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.<\/p>\n<p>In accordance with general principles, a cause of action or claim accrues when a significant or nontrivial amount of damage is manifest.\u00a0 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.<\/p>\n<p>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.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Clinical_Negligence_Not_Commenced\"><\/span>Clinical Negligence (Not\u00a0 Commenced)<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>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.<\/p>\n<p>The period will remain at two years for injuries caused by negligence, nuisance or a person\u2019s breach of duty, for example, most road traffic accidents.<\/p>\n<p>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\u00a0clinical negligence action\u2019 means an action for the recovery of damages brought\u00a0by 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\u00a0against 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;<\/p>\n<p>In this context \u2018health service\u2019 means\u2014<\/p>\n<ul>\n<li>the carrying out of a clinical investigation, diagnosis, procedure, treatment or research,<\/li>\n<li>the provision of clinical advice or information, or<\/li>\n<li>the provision of clinical care;<\/li>\n<\/ul>\n<p>A health service provider means a person whose name is on\u2014<\/p>\n<ul>\n<li>the register of medical practitioners,<\/li>\n<li>a register maintained by the Dental Council,<\/li>\n<li>a register maintained by the Optical Registration Board,<\/li>\n<li>a register set up under the Pharmacy Act 2007 ,<\/li>\n<\/ul>\n<h3><span class=\"ez-toc-section\" id=\"Injuries_Board\"><\/span>Injuries Board<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>The Injuries Board was established in 2004 in tandem with significant reforms to the law on personal injury claims.\u00a0 The 2004 Act reduced the limitation period to two years.\u00a0 However, the clock stops while the claim are \u00a0before the Board. \u00a0\u00a0An additional six months applies after the Injuries Board authorisation.<\/p>\n<p>Not all claims for personal injuries must be submitted to the Injuries Board.\u00a0 The types of claims are set out in the legislation and have been gradually extended.\u00a0 It applies to civil actions \/ claims\u00a0 arising from such claim claims arising from road traffic accidents, workplace accidents, so-called occupier\u2019s liability claims (based on the \u201cstatic\u201d condition of a premises).\u00a0\u00a0 Civil actions are claims for monetary damages in respect of a civil wrong causing personal injuries and\/or personal injuries and property damage.<\/p>\n<p>The Injuries Board procedure <em>and t<\/em>he special Statute of Limitation period, \u00a0does not apply to a separate action, bona fide brought for additional claims, which is not intended to circumvent the legislation.\u00a0 It does not apply to claims for breach of constitutional duty or under the European Convention on Human Rights.\u00a0 It does not apply to Gardi S\u00edoch\u00e1na 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.<\/p>\n<p>The six-month extension after the conclusion of the Injuries Boards process applies only where the Statute of Limitations apples.\u00a0 It does not apply to certain other less common <em>proceedings<\/em> including in particular the two-year time limit on claims pending on death, \u00a0applicable under the Civil Liability Act.\u00a0 It does not apply to certain statutory time limits applicable in respect of accidents on international means of transport.<\/p>\n<p>The clock stops under the Statute of Limitations when an application is submitted to the Injuries Board.\u00a0 The application must be validly made in accordance with the rules prescribed under the legislation.\u00a0 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.<\/p>\n<p>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 \u201cstatute barred\u201d (because the limitation period has run its course).<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Date_of_Knowledge_I\"><\/span>Date of Knowledge I<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>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.\u00a0 The claim is discoverable on the date on which the claimant had the requisite knowledge.\u00a0 The date of knowledge is the date on which he first had knowledge of the following facts.<\/p>\n<ul>\n<li>that he had been injured;<\/li>\n<li>that the injury was significant;<\/li>\n<li>that it was attributable partly or wholly to an act or omission based on negligence, nuisance or breach of duty;<\/li>\n<li>the identity of the defendant;<\/li>\n<li>where the act or omission is that of a person other than the defendant, the \u00a0identity of that other person and the additional facts which support the bringing of the action against the defendant.<\/li>\n<\/ul>\n<p>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.<\/p>\n<p>A longer time limit applies to claims brought by personal representatives or dependents of a deceased person.<\/p>\n<p>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 \u00a0or from facts ascertainable by him with the help of medical or other appropriate expert advice which is reasonable for him to seek.<\/p>\n<p>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 \u00a0acquire as a result of the injury.<\/p>\n<p>Questions may arise as to when it is reasonable to obtain expert reports and advice.\u00a0 This will depend on the particular case and circumstances.\u00a0 The question is whether it is reasonable for the person to seek advice.\u00a0 This may be so, even if he does not have the financial or other means to obtain that advice.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Date_of_Knowledge_II\"><\/span>Date of Knowledge II<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>The test is not wholly objective.\u00a0 Account is taken of the personal characteristics of the person concerned.\u00a0 This includes facts and characteristics which may make it reasonable for him not to seek expert advice.\u00a0 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.<\/p>\n<p>Complex questions may arise in relation to the knowledge of an injury.\u00a0 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.<\/p>\n<p>Time starts as soon as the claimant is aware that the injury was significant.\u00a0 This may occur where an injury which was initially minor, becomes progressively more serious and significant over time.\u00a0 In such cases, the limitation period will commence to run at the point in time when the injury becomes significant.\u00a0 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.<\/p>\n<p>The issue of a \u201csignificant\u201d injury has been arisen in the context of abuse and sexual assault.\u00a0 There may be an awareness of an injury, but its significance may not be known, particularly where there is a later significant psychological impact.\u00a0 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 \u00a0delayed psychological consequences.<\/p>\n<p>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.\u00a0 He must know that the loss,, damage or injury, \u00a0is capable of being attributed to that person\\&#8217;s negligence, so that further advice and investigation may disclose the position.\u00a0 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.<\/p>\n<!--themify_builder_content-->\n<div id=\"themify_builder_content-21315\" data-postid=\"21315\" class=\"themify_builder_content themify_builder_content-21315 themify_builder tf_clear\">\n    <\/div>\n<!--\/themify_builder_content-->\n","protected":false},"excerpt":{"rendered":"<p>Limited Discoverability Exception A \u201cpersonal injuries\u201d 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 [&hellip;]<\/p>\n","protected":false},"author":341,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_exactmetrics_skip_tracking":false,"_exactmetrics_sitenote_active":false,"_exactmetrics_sitenote_note":"","_exactmetrics_sitenote_category":0,"footnotes":""},"categories":[313],"tags":[],"_links":{"self":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/21315"}],"collection":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/users\/341"}],"replies":[{"embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/comments?post=21315"}],"version-history":[{"count":5,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/21315\/revisions"}],"predecessor-version":[{"id":21662,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/21315\/revisions\/21662"}],"wp:attachment":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/media?parent=21315"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/categories?post=21315"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/tags?post=21315"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}