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Limitation Period Personal Injury
Two recent cases focus on the court's discretion to exclude the 1980 Limitation Act (the Act) and allow for the processing of an application that would otherwise be prescribed. A claim for negligent bodily injury is subject to the Act. The general rule is that the limitation period for injury claims is three years. Subject to certain caveats (see below), the limitation period is the time within which an applicant or his or her representative (for example, a parent of a child who has been negligently injured) may bring an action for damages. If an applicant does not initiate court proceedings within the statute of limitations, then, subject to the court's discretion to waive the limitation period, the opportunity to seek compensation is forever lost. The law loves certainty. Public policy requires that even if a wrong has been done to another, there should be a period after which the alleged offender is free from the threat of a claim. So we have the law. Generally, it starts on the date the injury is caused. In cases of medical malpractice, if a surgeon carelessly cuts a blood vessel or cuts a nerve, this will have a reasonably obvious consequence. But in the case of an incorrect or late diagnosis, or slow bleeding of a surgical or anticoagulant failure, the breach of duty occurred at the time of misdiagnosis or actual injury, but neglect can constitute a continuing breach of duty to the point that it is discovered, or could have been discovered by a reasonable investigation. To address this issue of latent problems or insufficient factual information, the date of departure for the calculation of the three-year limitation period is the first date on which the injured plaintiff had knowledge, which he should reasonably have acquired, necessary to bring legal action. The plaintiff must therefore have taken cognizance of the material facts, have known that the injury was serious enough to conduct an investigation in order to take legal action and know the identity of the potential parties to the action. This knowledge is required to start the limitation clock, and if some of this knowledge is missing, the limitation period will not start. In essence, the three-year period only begins when the plaintiff discovers the problem and
