Litigation: Time Bars in Litigation – For Whom the Bell Tolls

In July 2015, we considered two cases where the court had been unsympathetic to Pursuers attempting to challenge a time-bar defence - /news/2015/07/litigation-time-bars-in-litigation-is-the-current-system-fair

This area of the law has recently been considered further in the case of Young v Borders Health Board - http://www.scotcourts.gov.uk/search-judgments/judgment?id=45d101a7-8980-69d2-b500-ff0000d74aa7

In this case, an evidential hearing addressed the limitations and exceptions set out in sections 17 and 19A of the Prescription and Limitation (Scotland) Act 1973. We have previously considered the latter section (/news/2013/11/personal-injury-the-personal-injury-time-bar-when-is-it-too-late-to-claim/) and it received little further consideration in this particular case.

Section 17 of the Act relates to actions in respect of non-fatal personal injuries. Subsection (a) is relatively straightforward and provides that no action shall be brought unless it is commenced within 3 years after the date on which the injuries were sustained or, if a continuing act/omission, the date the act/omission ceased, whichever is the later.

Subsection (b) is less predictable. It provides that no action shall be brought unless it is commenced within 3 years after the date by which the pursuer became, or in the opinion of the court it would have been reasonably practicable for him to become, aware of all the following facts:-

(i) that the injuries in question were sufficiently serious to justify raising an action….;

(ii) that the injuries were attributable in whole or in part to an act or omission; and

(iii) that the defender was a person to whose act or omission the injuries were attributable in whole or in part….

The Young case concerned the actions of staff in the A&E department of Borders General Hospital (BGH). The issue was whether the failure of staff to seek immediate orthopaedic review and consider a diagnosis of infection with compartment syndrome in February 2007 amounted to a breach of duty. The correct diagnosis of compartment syndrome was made on 19 February 2007 resulting in surgery to deal with the serious ongoing infection.

The Pursuer, when giving evidence, appeared “utterly bewildered” by what had happened to her in February 2007 and repeatedly described herself as being in a “bubble”, focusing entirely on getting well. The Pursuer then entered the hospital complaints procedure by letter in March 2008. The complaints process ended in December 2008.

The Pursuer’s position in evidence was that the first anniversary of the events at BGH acted like a trigger, making her think about whether or not her illness might have been avoided if she had received the correct diagnosis. The Pursuer undertook some internet research following the anniversary that led her to enter the complaints procedure. Thereafter, a court action was served on the Defender on 17 February 2011, over three years after the admission to BGH.

In seeking to establish that her action was not time-barred, the Pursuer sought to rely upon “awareness” and in particular that the she did not become aware that her condition could be the result of a delay in diagnosis until this was revealed by her internet research after the first anniversary in 2008.

The Pursuer argued that the proper question to ask when assessing constructive awareness is: when would it have been reasonably practicable for the pursuer, in her particular circumstances, to have become aware of the relevant statutory facts in section (17)(2)(b)?

The Pursuer felt factors including suffering a developing medical condition, this being initially misdiagnosed, non-disclosure of things having gone wrong and her severely compromised subsequent health, were all relevant to the consideration by the court of when she could have become aware her injuries were attributable to omissions by BGH staff.

The Defender argued that, at best, the three years commenced by March 2007 because, by then, it was reasonably practicable for the Pursuer to have become aware of all the relevant facts. The pursuer knew enough by that point to ask if there had been a harmful delay in diagnosis. By the point of emerging from unconsciousness in intensive care, the Pursuer knew the orthopaedic surgeon’s correct diagnosis and that, accordingly, the preceding diagnoses were incorrect. Furthermore, given the Pursuer knew her infection was of a type where early treatment was required and the delay really mattered, the Pursuer knew enough to ask whether, if there was a delay, it was a harmful one.

The court had no difficulty in finding, on the evidence, that the pursuer’s action was barred by limitation of time. The court stated that the evidence of the pursuer was entirely determinative of the outcome in this case. The judge felt a letter that formed part of the Pursuer’s complaint was written prior to February 2008 and, therefore, because the action was served on 17 February 2011, it followed that the Pursuer’s action was time-barred.

The judge added that, in terms of constructive knowledge, by the time of the Pursuer’s discharge in March 2007, she knew there had been several incorrect diagnoses prior to the correct one. By that stage, the Pursuer was on notice of the key facts and required to take all reasonably practicable steps to inform herself of all the material statutory facts.

What this case tells us is that the court continues to take a very strict line when a Pursuer attempts to argue that their three year period commences at a later date based on constructive knowledge. This case also makes it clear that any period during which a Pursuer is living in a “bewildered bubble”, focusing on getting better, is not excluded from the computation of time. Furthermore, although not directly argued in this case, the period during which a Pursuer is engaged in a complaints procedure is not excluded from the period of time that the law allows to fully investigate a potential claim and, if supportive reports are received, to raise court proceedings.

It is in light of this that we encourage anyone who thinks they might have a claim to contact one of our solicitors and to commence an investigation as quickly as possible after the harmful events have occurred.