You have three years to bring a claim for clinical negligence before you must issue court proceedings.

Limitation periods in English and Welsh law, exist to provide finality and fairness in legal disputes. They establish deadlines for bringing legal claims. They prevent potential defendants from being indefinitely threatened by litigation. This helps in:-

Preventing Unfairness:
After a significant amount of time, evidence becomes less reliable. It is increasingly difficult to gather evidence, reconstruct events, and locate witnesses. This can lead to unfair outcomes.

Promoting Efficiency:
Limitation periods encourage parties to pursue their claims promptly. This helps prevent backlogs in the legal system. It also allows for quicker resolution of disputes.

Providing Certainty:
They offer clarity and predictability for individuals and businesses. This allows them to understand their legal obligations. They can also comprehend their potential liabilities within a defined timeframe.

Protecting Against Stale Claims:
Limitation periods prevent individuals from being sued for actions that occurred long ago. This ensures that defendants are not perpetually exposed to legal action.

Exceptions and Variations:
Most claims have limitation periods. However, there are exceptions for certain types of cases. These include cases involving fraud or where information is deliberately concealed. The length of the limitation period also varies depending on the type of claim (e.g., personal injury, contract disputes, etc.). In clinical negligence and Personal Injury cases that period of time is three years.

Three years runs from your constructive date of knowledge.

In many cases the three year time period will run from the date of the negligence. This is only because they are often the same date as your date of knowledge.

Here is a crude example. You go to the GP with a medical concern. They misread your notes. They negligently prescribe the wrong medicine. Taking it causes you to have an allergic reaction. Your date of knowledge would most likely be the same as the date of negligence. This is because they happened on the same day.

But…..

What if you are negligently prescribed the wrong medicines by your GP or pharmacist, and the effects are not immediate? What if it take some years for you to discover this fact. In this case, the three-year limitation period will begin from the date of your knowledge. It will not start from the date of negligence. So actually limitation would begin to run years from the date of the negligent act.

Actual knowledge is not constructive knowledge.

The date of knowledge the court uses will not necessarily be the date that you tell the court you knew. What if you were to knowingly give the court the wrong date to give yourself more time? Instead, the court uses what it calls ‘constructive knowledge’ in place of actual knowledge. This determines the start date of the limitation period. It aims to prevent potential claimants from delaying the start of the limitation period deliberately. Claimants might remain intentionally ignorant of the facts that would trigger their claim. If claimants ignored information readily available to them, they could claim ignorance. This would undermine the purpose of limitation periods.

What is ‘constructive knowledge’

Constructive knowledge is a purely legal concept, where someone is considered to have knowledge of a fact or situation. This is true even if they don’t have actual, direct awareness of it. It’s essentially a legal presumption that they should have known, often due to their position or the circumstances. This means they are held to the same standard as if they had actual knowledge, even if they didn’t. The claimant’s date of ‘constructive knowledge’ of a claim determines when the 3 years limitation period begins.

How does a court decide the date of constructive knowledge.

The courts set the date of constructive knowledge under section 14 of the Limitation Act 1980. They do this by applying an objective test. They decide when a reasonable person in the claimant’s position would become curious. This curiosity would lead them to seek advice about their condition or injury.

Factors considered would include:

Seriousness of the condition: The degree of curiosity expected depends on the seriousness and manifestation of the condition. ​

Reasonable actions: The court assumes that a person who suffered a significant injury would seek advice. This is unless there are reasons why a reasonable person in their position would not have done so. ​

Subjective reasons: The court may consider the claimant’s subjective reasons for not seeking expert advice earlier. The court will assess whether these reasons were reasonable. ​

Assessing your date of knowledge

Understanding Your Date of Knowledge
We follow a structured process. This helps determine the date when you became aware of the key facts related to your claim. ​ Here’s how it works:

Your Actual Knowledge ​
First, the court looks at what you personally knew about the facts of your case, as outlined in the law (LA 1980, s 14(1)(a)–(d). ​ This requires detailed information from you about your understanding of the situation. ​

What a Reasonable Person Would Know
Next, the court examines a hypothetical reasonable person’s knowledge in your position. They consider their knowledge at the time. They would have known about the same facts. ​This helps them understand whether your knowledge aligns with what would generally be expected (as per LA 1980, s 14(3)(a)). ​

Combining Knowledge
We then combine what a reasonable person would know. This is combined with the facts you actually knew. Together, it provides a clearer picture of your overall knowledge. ​

Reasonable Enquiries ​
Finally, the court will assess the steps a reasonable person in your position would take. This may include consulting experts to find out more. ​ They consider what information those enquiries would likely have uncovered and add that to your total knowledge. ​

Example: Noise-Induced Hearing Loss (NIHL) ​
In this example, your claim involves hearing loss caused by workplace noise. You didn’t visit a GP despite serious symptoms. The courts would assess whether a reasonable person in your position would have sought medical advice. ​ If so, we would need to find out what a GP would have said or done at the time. ​ This involves consulting a GP for expert opinion. ​ If a GP would have diagnosed hearing loss, the assessment date would confirm your constructive knowledge. Alternatively, if a GP linked your symptoms to your work, this date would also confirm your constructive knowledge.

You won’t be treated as if you had constructive knowledge of certain facts, if you sought expert advice, but that advice didn’t uncover them. Instead, your knowledge will be based on what you actually knew. It will also include what a reasonable person would have known (as per LA 1980, s 14(3)). ​

The court will combine all this information. Then they can determine whether you’ve reached the date of knowledge for the purposes of your claim.

Contact

Michael Shaw is a Direct Access Barrister specialising in clinical negligence. If you have a claim with a limitation issue then you can contact him using the details on this page.