Litigation: Time-bars in litigation – is the current system fair?

One of the key issues to be considered when investigating any potential court action is that of time-bar, ie the extinguishing of your right to claim through passage of time. This matter will often be at the forefront of a litigation solicitor’s mind when investigating a case prior to raising proceedings.

The courts, arguably, have been known to be quite unsympathetic to pursuers in their interpretation of the legislation regarding this matter. This article will look briefly at two cases where the pursuer’s right to claim compensation was considered to have time-barred.

The first of these cases is the English case of Fenech v East London and City Health Authority (2000 Lloyd’s Medical reports 35). This was a case in which the claimant alleged negligence against a surgeon who, unbeknownst to her at the time, left a fragment of a broken needle inside her body whilst performing an episiotomy during the birth of her son in 1960. The claimant experienced chronic pain as a result and her sexual relationship with her husband suffered, although she did go on to have 5 more children. Due to the intimate nature of her complaints, the claimant did not seek medical attention for these problems until 1983 when her male GP was replaced with a female doctor. Even at this stage, investigation of the problem was fruitless. In 1991, the claimant had an x-ray for an entirely unrelated matter which showed the broken fragment of needle; however, as it was not relevant to those investigations, it was not mentioned to her. It was not until 1994 that the claimant was informed of the needle’s presence and, at this stage, she remembered that back in 1960 the surgeon had mentioned that the needle had broken during the episiotomy procedure. The claimant then raised proceedings for medical negligence in January 1997 but the court held that, although she did not have actual knowledge of the presence of the needle until February 1994, she did have constructive knowledge prior to this.

Section 14 of the Limitation Act 1980 applicable in England and Wales deals with the definition of the date of knowledge. It states that “… references to a person's date of knowledge are references to the date on which he first had knowledge of the following facts:

(a) that the injury in question was significant; and

(b) that the injury was attributable in whole or in part to the act or omission which is alleged to constitute negligence, nuisance or breach of duty; and

(c) the identity of the defendant; and

(d) if it is alleged that the act or omission was that of a person other than the defendant, the identity of that person and the additional facts supporting the bringing of an action against the defendant;

and knowledge that any acts or omissions did or did not, as a matter of law, involve negligence, nuisance or breach of duty is irrelevant.”

The claimant’s appeal of this decision was dismissed. It was held that she ought to have sought medical assistance sooner, despite her reluctance, given the impact the difficulties were having on her life and the fact that she knew they commenced following the birth of her first son.                              

The second case to be discussed is a Scottish one: David T Morrison & Co Ltd (t/a Gael Home Interiors) v ICL Plastics 2014 SC (U.K.S.C.) 222. This case concerned an explosion which occurred in 2004 at ICL Plastics’ factory in Glasgow. The explosion caused extensive damage to a shop owned by the pursuer; however, the pursuer argued that it was not until some considerable time after the event that they became aware, nor could they with reasonable diligence have been aware, that the damage had been caused by the negligence, nuisance or breach of duty by the defender and so proceedings were not raised until 2009. The pursuer’s position was that, until an investigation had been completed into the cause of the explosion, it could not be known that there had been any negligence and so there was no proper basis for a claim to be made. The Outer House of the Court of Session held that there was a presumption of negligence resulting from the explosion, the principal of res ipsa loquitur therefore applied, and the commencement of the prescriptive period was not deferred. The pursuer’s action was dismissed.

In Scotland, Section 11 of the Prescription and Limitation (Scotland) Act 1973 deals with obligations to make reparation. Section 11(3) states:

“In relation to a case where on the date referred to in subsection (1) above (being the date when the loss, injury or damage occurred)… the creditor was not aware, and could not with reasonable diligence have been aware, that loss, injury or damage caused as aforesaid had occurred, the said subsection (1) shall have effect as if for the reference therein to that date there were substituted a reference to the date when the creditor first became, or could with reasonable diligence have become, so aware.”

The pursuer appealed this decision to the Inner House which held that section 11(3) of the Prescription and Limitation (Scotland) Act 1973 could be relied upon to postpone the commencement of the five year prescriptive period to a date when a pursuer first became aware that the loss and damage suffered was caused by negligence. The Inner House held that, although the pursuer knew that they had suffered loss and damage as a result of an explosion in the defender’s premises, it did not, at that stage, know that the explosion had been caused by negligence. The appeal was upheld.

This decision was then appealed by the defender to the Supreme Court who considered the interpretation of the Act. The question they faced was whether the wording of section 11(3) of the 1973 Act meant that the claimant had to be aware only of the occurrence of the damage, or whether he had also to be aware that the damage had been caused by an act, neglect or default. The Supreme Court held that the correct interpretation was that the word ‘aware’ should represent only an awareness of damage. The defender’s appeal was allowed.

Following this decision, the Scottish Law Commission will consult on this issue to consider whether the law of prescription in relation to claims for latent damage is in need of reform.

Arguably, the decisions in both of these cases have the effect of promoting a more litigious society whereby potential pursuers will have to consider raising legal actions before there has been a suggestion of negligence.

Normally, your solicitor will have to investigate your claim before an action can be raised, which will usually take a number of months. For this reason, if you think you have a potential claim, we would always recommend that you seek legal advice at the earliest opportunity to avoid your potential case becoming time-barred.