An important Personal Injury update regarding the problems which can occur with Limitation and the solutions for them.
Good afternoon and welcome to this webinar on limitation. My name is Nikki carter and the idea of this weapon is to bring you kind of up to date really. And just review some of the challenges that limitation issues. Bring for P. I. Lawyers. So let's get started and let's look at what we're going to discuss. Um, we're going to talk a bit about the problem areas and limitation and I'm sure if you've been doing this area of work at all so far, you'll, you'll know that there are some areas that bring real challenges to this kind of work. Even if you're new to it. These are the areas that you're going to have to look out for and that can cause lots of trips for P. I. Lawyers. Um, one of the things I think before we even go on to talk about the way the limitation at works and some of the challenges within it is we need to decide whether what's occurred, what's happened actually falls within the sort of definition accident and when, whether whatever's happened is it might be considered a deliberate act. And what difference that actually makes. Because the short answer is it makes a significant difference. And it may well be that we find ourselves in different parts of the limitation act as we all know, the act deals with different limitation periods for different types of action. And I think we have to be clear whether we're talking about matters that arise from deliberate acts or those that perhaps arise from as we would hope in P. I. Accident of some form or another. I want to talk a bit about the section 14 test and one of the reasons I want to do that is because, you know, the the test itself is always challenging and I think it's quite difficult sometimes to, to work out how the courts are going to interpret the way in which the section 14 tests works. And I wanted to talk specifically about the challenging part of the test, which is that of constructive knowledge. So more on that later, we'll talk about what that actually means. Um, well, I also want to say a bit about section 33. So I want to talk about discretion. What's important, what are the relevant factors the court will take into account and that sort of ties in really, in fact all of that ties in with the next part the slide, which is a case law update. So we'll look at what, what decisions are being taken, what are the sort of latest trends because I think we have to accept that there are trends in limitation. Um, and blocks of cases, it seemed to establish certain theories. Whenever you've got the court's discretion, you're always going to have a challenge trying to work out what the court might do in your individual case and the stakes are high, you know, potentially. Um if we unwisely take on a limitation matter close to the bar and were unsuccessful. That the risk is of course that the firm or the organization risks a professional negligence action. So, you know, they couldn't be higher the stakes on this process. So we need to decide which cases we're going to take on and you know, which cases that we really feel that we absolutely can't take on at this point because it can be a real problem. Um, and you know, whether you do, you deal with disease cases or whether you deal with the mixed P I case load, you know, perhaps accidents at work getting up to speed on limitation is vital and hopefully we can, we can deal with most of the significant areas today. So I think the first thing that we need to acknowledge is that in the vast majority of cases there where there's limitation is an issue, there are three things that are really going to matter and what's going to matter is the cause of action. So, you know, you tend to think, well obviously in a road traffic kind of scenario, when when's the date the cause of action will clearly that's when the accident happened. And we know that for the majority of um limitation issues, the start date, if you like, whatever the, the area of law, the date of course of action is usually the inset day, but we also need to be aware when date of knowledge is going to be relevant, so when and in what circumstances is the court going to be interested thinking about the date of knowledge rather than the date of the course of action. And clearly the date of knowledge may well be much later than the date of course of action. To take the obvious example a road traffic accident claim it takes the view that the injuries sustained at the time of the accident are not very Serious and finds out perhaps four years later, maybe when an X ray comes along that things were much more serious than first anticipated. Does that mean it's that later date of discovery, that's The relevant date for counting on the three year clock that's ticking And we will answer that question certainly it's not straightforward answer of course, but we will answer that during the course of this webinar. And then lastly, you know, when and what circumstances is there an availability of discretion? So when even if the limitation period is up, even if we've done our sums and we're pretty confident unfortunately the claimant is out of time. When is it realistic to think that we might be in a position to ask the court to apply their discretion. Now it's a bit background. One thing we ought to be aware of is that having a defense of limitation and I think we need to be clear that that's just what limitation is it is an available defense? It's got a long history in english and it goes right back to the 1600s and you know, the concept that really is being addressed in that, what's the word fixation almost, if you like, with limitation is that delay generally is going to be The enemy of justice. And you know, we we certainly know that for example, when the civil procedurals came in in 1990 nine, that you know, that was one of the imperatives um for bringing in came through as a result of the report access to justice, didn't they? Those new rules as they were, then they came along on the basis of trying to get rid of a certain amount of delay. We know that at the moment the current statutory framework is contained within the Limitation Act, 19 80. And we also know that for personal injury matters. The relevant Provisions that matter are contained in sections 11, section 14 and section 33. So the first thing You know, for section 11 is to try and think about when did the cause of action accrue? And we know that for personal injury that we've got a limitation period of three years in most cases from that date. Um Now let's call a spade a spade. I think if if the claim form has not been issued within that period, the claimant might overcome the so called statutory bar by proving that he didn't acquire knowledge of essential elements of his cause of action. Usually things like significant injury and attribution to the defendant's act until later date. And if that's the case then we know that the limitation clock literally just starts later. It's no different time is still three years but the start date if you like is later and we'll look a bit more at the provisions of section 14. Um If you know worst case scenario, the claimant hasn't issued its claim form within three years of the date on which he acquired knowledge as defined in the rules uh as sorry as defined in the act, the limitation act, section 14 then there is a discretion isn't there? So We need to look a little bit further down the act. Section 33 is the court's ability to exercise its discretion to permit the claim to proceed anyway where it's equitable to do. So we'll examine what, where it's equitable to do. So actually means let's take a look first because I mentioned this issue of um deliberate and accidental matters. And I think one of the first things to kind of think about, you know, I think this case of whore back in 2000 and eight um when we still had a House of Lords and our Supreme Court is really pertinent to this. Um And and that's the sort of argument and I don't know if you remember the whore case, but essentially and very briefly um it concerned a claimant who had been sexually assaulted raped I think by the defendant many years ago. Um strangely and oddly the defendant was sent to prison for the offense. That wasn't strange and odd but was strange and odd was on an away day um from prison, the defendant won the lottery. That was one of those things you feel like you just couldn't make up really. Um Now having sort of decided that it wasn't worth pursuing the claim since the defendant had um no funds. The claimant decided that this was now the time to pursue that defendant and this was now many, many years later. Um The decision of the case goes all the way to the House of Lords because the issue really was well hang on a minute. What's the limitation period for a case like this? Surely what happened to the claimant off? Although it was wasn't accidental. Does what happens to the claimant need to be accidental for the claimant to have, if you like, recourse a two. Section 11 of the limitation act i. E. That the limitation period is three years With the subsequent position on Section 14 knowledge. And crucially does the claimant have the benefit of the discretion Upon at section 30 3? A discretion only available in personal injury cases. And I think, you know, what was argued in whore, was that because the assault if you like, was deliberate, but Perhaps because it was a deliberate salt. This was a case where technically there was a fixed six year Time limit. Section two of the Limitation Act deals with that and that actually uh the availability of section 33 for the claimant and indeed, um The sort of section 11 stretches with knowledge was also unavailable. The court was really, really clear and the sort of take out from this is that for cases that involve Personal injury, however that personal injury is caused. Section 11 is the place to go. and of course section 11 imposes that three year time limit um you know, for an action for damages for negligence, for nuisance or breach of duty where the claim includes one in respect of personal injuries to the claimant or any other person. There's no confusion. It is a three year time period. But what matters is that that three year time period is subject to the exceptions in section 14 For knowledge later start date and section 33 the discretion to apply to have that time limit if you like, set aside. Um The other thing I think to remember and again if we, you know, just addressing the background issues here is that the act before the Current Limitation Act in 1980 was um the limitation at 1939 and you know, causes of action accruing before and there will be very very, very few of these. Certainly Before four June 1950 four continue to be subject to the provisions of section two of the limitation at 1939 and that imposed a non extendable six year limitation period as I say, very, very unlikely, um, to be the case, but you know, in very long tail um disease historic sex abuse cases. It's possible um that you might have something of that kind come up and it's it's worth knowing and being aware of that fact. Um So prior to the 4th June 1954, you've got the provisions relevant to the old act. Um We said that we know that in the vast majority of personal injury claims, the cause of action accrues at the time the accident happens. And it may be that the claimants knowledge subject to The tested section 14 comes along later. So, you know, the claims are claims arising from a traumatic accident. Um, the a cruel and the cause of action will generally come at the same time. Um clearly things like industrial disease or clinical negligence things are more complicated. Um, and certainly, you know, we had cases like Mcdonald and the Congregation of christian Brothers Trustees back in 2000 and three, that went to the House of Lords, um where, you know, the claimant appealed against the decision that his claim for damages against the defendants for breach of duty and negligence was time barred between 1940 one and 1951, and the claimant had been a pupil at schools run by both defendants and he sought to recover damages for physical emotional and sexual abuse, which he claimed to have suffered at the hands of the staff at the school and he alleged that as a result of that abuse, he suffered personal injury and developed a chronic psychiatric damage situation um issue proceedings in the year 2000, but because he had been a minor at the time of the abuse, um had he been a minor at the time of the abuse, his claim had, under the limitation at 1930 nine become statute Barred in January 1960 three. six years after he attained the age of majority, the Acts of 1963 and 1975 did not operate to overcome an accrued limitation defense in cases where the cause of action had accrued prior risen, sorry, prior to 1950 for and where there was a six year limitation period. Um and there was a reference to a case called Arnold in 1988 case called Arnold. Um The Decision in Arnold was not limited to claim statute barred when the 1954 Act came into effect. So the reality is that it is possible that there will be some, if you like long tail cases where perhaps because of industrial disease or historic sexual abuse, that you may find yourself in a situation where the acts go back to that date and we have to be mindful of the fact that the relevant period under the previous limitation act is a non extendable six year limitation period, obviously for a minor, that period begins at the date that they attain their age of majority. Okay, I think also what we need to address Is the fact that section 11 114, actually of the limitation at 1980 provides that if the claimant doesn't acquire knowledge until a later Date, the relevant limitation period expires three years after the claimant acquires that knowledge. So we know that that's how it works. Section 14 requires some careful appraisal because it sets out to define not only what the claimant has to know in order to acquire knowledge, but also to set out the circumstances where by reference to what the claimant ought to know or to have found out, he may well be fixed with that kind of knowledge. Now, the aim of this is pretty clear really, and it's to prevent claimants who, you know, for whatever reason, decide not to get on with things and just leave things uh from taking advantage um in relation to other claimants who positively sort of elect if you like to do nothing um quite clearly. Um and it's been said many times by the courts in the past that this area of the law is overloaded with reported cases, so, you know, frankly is only really necessary to try and summarise the relevant principles. And one of the things I think we have to acknowledge is and it's an awful phrase to use for a lawyer. I think it's very frustrating is that these cases are so often fact specific and it's quite difficult to try and extract general principles if you like from them. Um and indeed difficult to do and sometimes impossible to do. But I think some threads can be drawn from this. Um The limitation period can be extended in cases then of you know, insidious disease or delayed knowledge of injury or circumstances that give rise to the breach. Let's let's examine that in a little bit more detail. Let's take a look at the section itself and the section itself provides if you like a test. And the important on your slide is is the test set out section 14 1 of the act the first thing of significance is, and what is it that the claimant needs to know before all the limitation or the knowledge provisions are present is the date on which the claimant first had knowledge of the following facts. And it goes on. Then the section goes on to sort of a provides. Oh really? Um in terms that knowledge that acts or omissions did or did not as a matter of law involve negligence, nuisance or breach of duty is irrelevant. Now, what's odd perhaps about that interesting about that? Is that what that really means in practice is the claimant doesn't need to know that the defendant was negligent. Let's let's take the example of p. I so for example, um was the claimant has to have knowledge of factual matter. So let's take an example of a claimant who um is exposed to noxious fumes in a factory. For example, what the claimant needs to know is that his condition problem came about as a result of those noxious fumes. For the limitation clock to start ticking. Let's hold that thought because we need to address the question of whether or not um the injury if you like, was significant, but we'll deal with that in a moment. But what the claimant if you like, doesn't need to know um is that the spillage of all the escape of noxious fumes came about as a result of negligence on the part of the defendant. Um Now that brings a certain amount of sort of controversy I think because you know what the problem is is well if the claimant doesn't realize um that there might be negligence involved, how on earth do they make a decision to bring a claim, How does that work? But I think the reality is that that the court then takes the view that should then flag up or to the claimant. You know, the desire to go and find out more um and go and investigate perhaps with a solicitor um to see if it be possible to bring and claiming damages in cases like nash and eli lilly back in 1993 made that point. So you know, les clients are not expected to have sufficient knowledge, pardon upon um to work out that what has happened has come about as a result of negligence and you know, that is not part, that piece of information is not part of the knowledge test. So you know, there's the test that the injury in question was significant, 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. So using our analogy with the noxious fumes so far so good, the ident identity of the defendant and if it's alleged that the actual emission was of that of a person other than the defendant, the identity of that person and facts supporting the bringing of the action against him. So injury was significant attribute ability and the identity of the defendant. Of the other three main threads, if you like so far In Section 14, 1 of the Limitation Act, I guess we should say that in terms of identity of the defendant. So let's take the sort of simplest provisions first really, normally one's thought is the identity of the defendant is rarely going to be an issue. Um uh sometimes it is, and you know, one of the issues that comes up is in cases like Simpson and Norwest back in 19 80 and another case actually called Cressy and Tim in 2005. 1 of the strangely troubling areas is where claimants are working for an organization but don't have knowledge of the identity of their employer um as the defendant. Um So you know sometimes the employer employees may be uncertain or even wrong about the identity of their employer and in those circumstances the date of knowledge can be postponed. Case of Simpson is a case in point how long it would be postponed would depend on the facts of those cases. So in general and again we're back now to something else we need to say about the test of knowledge which I'll come to in a moment. It can only be postponed for as long as it reasonably took to make and complete the appropriate inquiries. Um In the case I mentioned of christian Timms. Mr Cressy was misinformed about the identity of his employer since his pay slips identify e tim's and son LTD and he had no reason to think there was any other organization that was his employer. Um And it wasn't suggested that Mr Christie should have tried to clarify the name of his employer sooner. Therefore Christie's second claim was issued within three years of the date of his knowledge and was not statute barred, basically had the wrong name of his employer on his pay slips. So there may be circumstances where this is a bit of an issue, but I think one of the other issues we need to address and and let's look at the other parts of the test to get a handle on this if you like. Um are clearly the issue of whether or not the claimants suffered significant injury and when if later the claimant began to appreciate the injury was attributable to the acts or omissions alleged to constitute negligence, nuisance or breach. And the Test is an objective one. Now, that's such an important factor. Um, you know, we've got lots and lots of test flying around in personal injury and some of them are objective. Some of them are subjective. When there are objective. What we need to take into account is that the court will look at the claimants actions and measure if you like. The claimants behavior and actions as against a reasonable person in their shoes and not necessarily the claimant with all the claimants individual issues. You know, if you've got somebody who for whatever reason, um, doesn't like doctors, doesn't like going to the doctor, perhaps a particularly stoical individual who, you know, I wouldn't go to the doctor if they could avoid it. You may have a significant problem on your hands. Again, no pun intended using the word significant to pin down when a reasonable person in the claimant shoes would perhaps have gone and sought medical attention. Uh, been given information about significant injury. Um, what is clear as I say with that test and the objective nature of it is, and it was something that came out of the case of whore that went to the House of Lords, We talked about a little earlier, um, in that case, um in the speech of Lord Hoffman, this was said, you asked what the claimant knew about the injury he suffered. You add any knowledge about the injury which may be imputed to him under section 14 3. More of that in a moment. And you then ask whether a reasonable person with that knowledge would have considered the injury sufficiently serious to justify his instituting proceedings for damages against the defendant, who did not dispute liability and was able to satisfy a judgement thereafter. The car will turn to the issue of attribution. When did the claimant appreciate his injury was attributable to the Acts or emissions of the defendant. In broad terms, the claimant requires general knowledge that the injury he has suffered may be connected to something done or not done by the talk Visa sufficient that if he wished he'd be able to approach a solicitor for the purpose of taking advice as to whether he might bring a claim. I don't think we could probably do better than to set out that test that Lord Hoffmann outlined In picking up if you like, the challenges that trying to interpret section 14 to bring. Um let's examine um the only definition that we have really of um significant and it comes at paragraph section Sorry 14, Sub two of the limitation act 1980. There it is on your slide um an injury is significant if the person whose date of knowledge is in question would reasonably have considered it sufficiently serious to justify his instituting proceedings for damages against the defendant who did not dispute liability and was able to satisfy a judgement. Um Now the authorities are unanimous, that's a pretty low test. Um You know, the Court of Appeal in the case of Dobby and Midway, for example, back in the nineties considered that unless the injury was so trivial that it could be regarded as a, if you like, a fact of life or not worth bothering about, it would otherwise be significant. And of course, in the pleural plaques Cases, the greaves and Everard cases from 2000 and six at the court of appeal referred To section 14 to when considering whether or not an injury was diminished mus. So it may be that if an injury is more than the minimus, it would be significant within the definition, but I think we need to be aware that for example, in cases like furnace and Firth Brown Lord Justice Smith suggested that symptoms which cause minor inconvenience and which can be brushed to one side, would probably not fall within that definition. So the first question to juggle with is whether or not, um the injury is significant and you know, it's hard to make broad statements about that, but I think, you know, certainly we've seen from case law, to be honest, that if you've got cases where the climate's been told that, for example, one of their organs has been affected their lungs, for example, um you know, on an objective basis, most people would consider that to be a significant injury. Um So, you know, common sense to some extent, but also some guidance um from uh case law and just anecdotal evidence about what a normal reasonable person would consider to be significant in terms of a risk to their health. The big, big challenge we have with the Knowledge test in the limitation act, it comes at section 14 3, constructive knowledge. And this really does add an extra Challenge as one way of putting it. And the extra challenges this, that whatever the state of the claimants, personal knowledge of the attribution of the condition or injury. The court will still apply an objective standard in relation to this aspect of the test. By applying the provisions of section 14 3. Um It carries a proviso this section and it basically is set out as you see on your slide. A person's knowledge includes knowledge, which he might reasonably have been expected to acquire a from facts observable or ascertainable by him or from facts ascertainable by him with the help of medical or other appropriate expert advice, which it is reasonable for him to seek. We should add that are following on from that we have, as I say, a provider and that provides, oh, is that a person shall not be fixed under this subsection with knowledge of a fact ascertainable only with the help of expert advice, so long as he has taken all reasonable steps to obtain and were appropriate to act on that advice. So, you know, it's not a question of um the claimant, you know, expecting to have expert knowledge, but certainly perhaps being in a position where they can make a decision about when expert knowledge, if you like, should be sought. So, if it's reasonable for a claimant to ascertain for himself, his injury might have been caused by the defendant's act or emissions, perhaps by just observing things around him. He'll have knowledge furthermore, If the matter can be ascertained with the assistance of an expert, usually a medical professor professional. It is incumbent on the claimant to seek that advice. And if that advice would have been positive, the claimant will be fixed with knowledge when it should have been obtained. You know, this does provide a huge area for area of controversy, I think. And, you know, if we check out or look back at cases like Adams and Bracknell Forest Again, in the House of Lords in 2004. In that case, Lord Hoffmann concluded that the test was wholly objective in that section and further, there was a reasonable expectation that claimants would seek The advice they required uh in this area, there's further comments by Lord Justice Smith in Johnson and the Ministry of Defence back in 2012, in broad terms, it's probably sufficient to conclude, but once the claimants suffered an injury, the symptoms of which he is aware and which in one way or another intrusive, the court would expect him to seek medical advice as to the cause of those symptoms. And if he doesn't may well fix that individual with knowledge when the advice should have been taken out a real cause. Now for concern. I think particularly for P. I. Lawyers, you know, what we tend to find in cases where there may be limitation concerns is, if you like, a whole uh, chronology of the claimants behavior and a chronology of when events happened. Uh, you know, we tend to look down that list and see when did the claimants seek medical advice? When did the claimant first offer symptoms to try and work out when knowledge might be started from? What I think is a real concern is that this particular section of the act suggests that, you know, it may be that the relevant date, the start of the three year clock is none of the dates on that chronology. And it may be a date that isn't there at all that the court might consider is the date that a reasonable person in the claimant shoes would have gone and sought, um, some opinion, some expert opinion. So, we may be looking if you like down a list of dates for, for a sort of start for The three year time period that is not not there and, and the date that the court may infer. So I think what we need to look at is once a claimant suffered injury, the symptoms of which he is aware and which are intrusive. The court would expect him to seek medical advice as to the cause of those symptoms and if he doesn't do that, at that point, he is likely to be fixed with knowledge when the advice should have been taken. And You know, certainly cases like car and panel products in 2018, in the court of appeal, you know, the employee argued, the judge had been wrong to conclude that if the employee had consulted his GP within about a year of first identifying his hearing loss, he would have been told the possible causes of his problem. However, the judge was entitled to take into account um the experience of dame Janet smith, that was the judge in Johnson and the Ministry of Defence Back in two 1,012 that such an outcome was likely even without it, he had been justified in reaching a common sense conclusion as to what the employee was likely to have been told by his GP. Although the medical experts at the trial disputed it actually the precise nature of his hearing loss. The judge had been entitled to find that a much earlier GP consultation would have led to the employee bringing proceedings and you know, we have to be crystal clear with this, this is a fictional visit, a visit to a GP that did not happen. Um And that's the real danger I think of trying to deal with cases where limitation is an issue under section 14 because you may well be dealing with dates are inset dates for the three year period to start ticking that don't yet exist. Um and we need to be aware of that. I think, I think the case of platt and brb residuals from 2014 in the court of appeal is a particular lesson in point uh noise induced hearing loss. Various, let's put it this way visits to specialists over the years. The claimant was employed by the defendant for uh 35 years from 1953 to 1988, say for a two year break. In 1982, he complains to his general practitioner about hearing. In 1997, he complains to his GP about tinnitus and hearing loss in his right ear and referred to an E. N. T. Registrar. He's asked by that doctor at the assessment, has he ever worked in a noisy environment to which he replied, yes, I have. This is a curious tale this story, but we need to address this fact. But the claimant didn't Then asked on that occasion whether the problems with noise or with his hearing were noise induced and the doctor didn't volunteer that information. So the question was asked. The claimant didn't pursue it. The doctor didn't pursue it and it's not until 2011 that he's told expressly that part of his hearing loss is noise induced. So The issue then is that in October 2011 the climate issues proceedings for damages for his hearing and Between then 2011, various doctors were consulted about hearing on many, many different occasions. The judge held that the claimant didn't have um Actual knowledge that there was a real possibility that is hearing loss was noise induced until he read a newspaper article in 2010. This is the first instance, less than three years before the issue proceedings. Further that the claimant was not affected by constructive knowledge and then it wasn't reasonable to have expected the claimant specifically to ask the E. N. T. Surgeon about the cause of its tinnitus and deafness. In 1997 the appeal however, came to a different conclusion. This was the defendant spiel excuse me. Um The defendant appealed the issue before the court was whether the claimant had been Affected in or around 1997 by constructive knowledge and the fact that his tinnitus and hearing loss were attributable in part to the Acts or emissions which had been alleged to amount to the defendant's negligence. The court considered section 11 sub three and 14 3 of the limitation act and applying the appropriate test under section 14 3 of the Act, took the view that it was reasonable to expect the claimant to ask the doctor what had caused his hearing loss in all the circumstances. It wasn't disputed that he had that had he done so he would have been likely to have been informed his tinnitus and hearing loss had would be noise induced noise related. The appeal was allowed. You know, the fact that the claimant had been retired for nine years and the fact that he had multiple ear and hearing problems over the previous year's suggested the circumstances made it unreasonable. Neither of those circumstances made it unreasonable to expect him to be curious about the cause of those unpleasant conditions and you know, it had been and this is the phrase that comes out of this judgment I think still haunts us really said the judge a natural and appropriate question to ask of that doctor. The Purpose of section 14 3 constructive knowledge is not to protect those who don't act reasonably in their own interests. Two obtain and act upon expert advice. Uh Now I think one of the, the sort of lessons if you like from that is yes in that plaque case, there was a clear doctor's appointment. But remember this was a question the claimant never asked and that the court just took the view would have been appropriate for him to ask. So we need to be mindful. I think when going through documents and looking at papers with dates in them of hospital visits and pieces of information delivered to be conscious that it may be that the date we're looking for, if you like, the real date of the start of the three o'clock ticking may not be there at all and maybe something in the court decides should have happened at a particular date and we need to be really aware of that. Um As another example, I think of this in action, we need to look at the case of Lewin and Glaxo operations. in 2016, The claimant, I think was 59, um was severely disabled. Um his case was he developed a disease if Iraq Noida to a rock myocarditis, a serious spinal condition as a result of a drug called Maya Dill Being injected into his spine during a diagnostic Milo Graham um procedure in 1970 three. Now the milligram been recorded as normal yet in the ensuing five years, the claimant had persisting problems with his lumber spine and occasionally cervical spine. And in 1977, an orthopedic surgeon noted that further investigation by X. Ray was unnecessary and that while the claimant might have a DS if Iraq Noid Itis, uh that could not Be confirmed. The claimant had intermittent flare ups of back problems in the 1990s. But it's not until 2007, he developed severe pain in his left knee, other symptoms then manifested themselves over the ensuing years. And an MRI scan in 2000 and 12 showed he has adhesions to his thoracic spinal cord. He's referred to a neurosurgeon who discussed with him for the first time. The link between all the potential link between the Maya Maya Dill and his condition. The claimant in fact ended up having surgery in 2013. In a report dated March 2000 15 that neurosurgeon concluded the claimants suffered from post my Odil Adidas. If Iraq myocarditis And proceedings were then issued in October 2015. In the early 90s, group litigation was being pursued actually, wasn't it against the defendant in respect of my Odil, um, in which settlements were agreed without admissions of liability. I think over four 1000 individuals have notified claims, although in fact, I think only a few 100 were proceeded with. So the issue is really in that case, were the date when the cause of action accrued the date of the claimants knowledge for the purposes of the limitation act, 1980 Section 14. And thirdly, if the claim had been brought outside the limitation period, whether it would have been equitable to allow it To proceed under Section 33 of the Act. The court took the view that the cause of action accrued when the Maya deal caused injury and not at the date of the injection. Uh It wasn't disputed that my Odil might give rise to late onset injury. Um, but the claimants, back problems persisted and Deteriorated over a 5-year period from 1972. Um, the evidence was that despite Problems persisting into the 80s and 90s, there was nothing reparable to his thoracic spine. The pain was lumber and occasionally cervical spine. The changing symptom, symptom Atallah gee suggested a gradual onset of a deteriorating condition in the thoracic spine, causing Paralysis from 2000, which could be linked to the thoracic cord adhesions. Are those adhesions said the court were just not present In the 70s or 1990s on the balance of probabilities, the damage to the thoracic spine was caused shortly before or In 2007. Where when there was a sudden event relating to the left knee marking the start of a deterioration of his condition. The claimant state of knowledge said the court was when the neurosurgeon diagnosed his condition in 2015, and accordingly, then the action was brought within the statutory limitation period. So the defendants Allegation that by 1980, the claimant had constructive knowledge um when he knew he had a back injury and the possibility of Iraq notice has been raised. That should have prompted him. They argued as a reasonable person to start investigating what the cause of that might be. The court didn't accept That argument. So while the claimant conceded that Iraq, Noida Otis must have been mentioned him in 1977. He was a young man with a problem in his lumber spine had undergone numerous procedures and no clear cause could yet be found for his injuries. So even if he should have considered that his condition might be that serious. Arachnoid itis, the court didn't accept he should as a reasonable person, have pursued that possible cause he'd received many opinions and have been told nothing specific could be identified, Nothing specific could be done accordingly. He would not have constructive knowledge of a decisive arachnoid itis consequent upon his milo graham as a potential cause of his ongoing back problems. Had he sought to pursue the matter, every indication from those um investigations would have been, is lumber problems had nothing to do with the milligram. So consequently, the action was brought within the statutory limitation period. And you know, I think we can see from just those two cases how facts specific these issues are. However, I think we need to be really clear and drill into the detail of exactly what it is, the claimant nose and exactly what it is that the claimants being told clearly, um, you know, the court went on in that case to say in the event, the court was wrong in relation to the date of knowledge, It considered whether or not it would have been equitable to allow the action to proceed pursuant to section 33. Um, you know, one of the issues might well be, was the case anything other than a weak case? So, the documentary evidence from the time of the group litigation was preserved and any gaps in the expert evidence could be filled. It wasn't a case in which the defendant was having to fight a stale claim where it had become difficult or impossible to contest it. And the main prejudice to the claim would be for both parties will be financial. Um However, the matters raised had already been the subject of detailed investigations by the defendant and it was now revealed that the claimant had suffered the late onset of a very significant injury in respect of which there was clear expert evidence as to its cause. It would be if necessary. Fair and just to override the statutory time limit. So, it's an interesting thought that, you know, very Others the exercise of discretion and we talked a little bit about what section 33 does. The ability for the court to exercise their discretion to allow the claim to proceed out of time will very often turn on the conclusions the court's reached when considering. Often as a sort of sister application, the clarification as to the date of knowledge. So often these applications will go hand in hand. Application for section 14, what's the date of knowledge and then application for discretion following on from that if the idea is the date of knowledge is more than three years from when the proceedings were issued. So section 33 itself confers on the court of power if you like to permit the claim to proceed if it would be equitable to do so. And largely the job here is balancing the prejudice cause to the claimant against the prejudice which the defendant will suffer if deprived of their limitation defense. So for this section to be relevant, claimants who fall foul of section 11 and section 14 of the Limitation Act have this further sort of resort if you like. Um section 33 of the limitation act. Now the discretion is unfettered and the court is entitled to take into account all the circumstances of the case. But together with six specific features that are set Out at section 33 Sub three, which will will take a look at the issues on that in just a second. Clearly um that the court can take into account any matter is now confirmed by the House of Lords Decision from 2006. The decision in Horton and Sadler. Um The gist of the decision is that Horton and Sadler gave claimant solicitors an argument that a a service mistake could be remedied by reissue of the proceedings. Um Now, the availability if You like, of section 33 discretion for situations where the reason the claimants Come to the court for section 33 discretion is as a result of um in this case a service mix up mistake, an incorrect service of the claim form, in other words, were a claim form has already been issued um overturns a case called Walkley And precision forging from way back in the 1970s. And what it does mean is that if you like whatever your reason for being in the situation where the limitation period is up if you like, Um section 33 if it's a personal injury case and it's um discretion is available to you as an option. There are No cases that are removed from that possibility. So everyone gets a shot if you like at Section 33. Um analysis of the authorities and and just what This test means was undertaken in a case called McDonald and Walker back in 2009 in the court of appeal and what we can see and in that case it's clear that the principles were summarized as follows. Firstly In applying section 33, the court will have regard to all the circumstances of the case and particularly the circumstances Set out at Section 33 Sub three. Come on to that in a moment. No one particular circumstance or issue is decisive but all should be weighed as part of the balancing exercise. So the test is not simply whether a fair trial is still possible. Um It's not as simple as that. So the relevant delay if you Like, identified in section 33 sub three and that's A and B. Is delay since the expiry of the limitation period. Overall delay is also relevant as part of the circumstances. So when we're considering one of these applications, we have to think to ourselves, when did the delay occur? What delay are we talking about here? Are we talking about delay before the limitation period expired or after? So depending on the issues and the nature of the evidence, the longer the delay the more likely and the greater obviously will be the potential prejudice to the defendant. A case where a defendant cannot show any forensic prejudice. So where the defense consists of a windfall is to be contrasted of course with a case where uh prejudices suffered because the defendant has not been notified of a claim. So as to make investigations of it. So let's examine some of those potential principles. Um Whilst the delay mentioned in the act as we've said is the is the delay since the expiry of the limitation period, the court will take into account overall delay. Um So it's important, you know, if the claimant has not begun if you like taking action um for you know, two years and nine months if you like. Um after the accident, the index accident um that's going to be relevant to the court's consideration of the period of delay as well as the period after the original three years would have expired. We're going to have to address any delay during that period. So we know that there's going to be an issue where if you like, you know, the defendants going to be able to show actual uh, disadvantage, if you like, actual um, you know, uh, forensic, let's call it prejudice. And of course, you know, it goes without saying the longer the delay, the harder that's going to be to overcome doesn't mean that Long delays mean inevitably that section 30 three will fail. That that's not true. And we'll certainly see that when we look at some of the decisions now, but it does cause more problems. Um, cases like Davidson and Aegis Defence Services are a good example. I think, um, you Know, where an application under Section 33 had to be decided on its own particular facts. And the availability of a claim against the defaulting solicitor was not a deciding factor. And, you know, the claimant had chosen to pursue his claim against the defendant rather than bring any claim he might have had against his previous solicitors. So I think what we need to address here is it doesn't follow that the defendant should have anticipated in the Davidson case, a claim once the claimant had complained as he did a back pain after a uh huh. It was an exercise, I think a kind of work related exercise where he injured his back. He had not said anything to anybody about his back problem before 2000 and nine. And you know, an appropriate demonstration of a proper lifting techniques had not been provided at the time. he carried out the exercise. It was no longer possible to determine who else had taken part in the same course or to locate documents that are related to it. And an investigation into the adequacy of any demonstration that had been given would have been very difficult. The coach agency of the evidence was never going to be satisfactory. It had always been a case that would have been troublesome to investigate and the delay had only made it more so the circumstances balanced heavily in favor of the defendant and it was appropriate to refuse the claimants application. It's an interesting case. I think that one because it's case where the period of delay was really not very long at all. I think it was only about 18 months but that it was a telling period because during that period witnesses became unavailable and documents had been destroyed or lost. And those factors become really, really important. So let's remind ourselves what those factors are. Firstly, the length and reasons for delay on the part of the claimant. Um, the effect of the delay on the coach agency of the evidence. We saw that in the David's case, Davis case, the conduct of the defendant is relevant if applicable. The duration of any relevant disability of the claimant arising after the accrual of the cause of action. Just to be clear what that means is if the claimant had lost capacity for any reason uh in a period after the accident had happened. Uh So you wouldn't have been under the mental capacity Act, wouldn't have had capacity and would have been in accordance with the limitation under a disability. Such that in theory, um limitation doesn't run during that period if that's not happened at the time of the accident but happened subsequently. Um that period will, and the length of that period will be a relevant factor in the exercise of the discretion. So, remember, it's only disability that occurs at the time of the accident or that the claimant already suffered when the accident happened that freezes the limitation period subsequently, uh disability doesn't, but if there's a period of it, it will be a relevant factor in the exercise of section 33. That's what that part means. The conduct of the claimant in pursuing the claim and the diligence of the claimant in obtaining expert advice, whether that's medical or legal. I think it's also important to say that we know from decisions that proportionality is also a relevant factor. So, the court is going to be less likely to exercise discretion If the claims of low value, there's no rule of law that errors on the part of a solicitor will be attributable to the claimant. So most claimants in most cases, the claimants reasons for delay, which were the ones that require some kind of analysis and not not necessarily the solicitors, I think also the existence of a potential claim against a solicitor is relevant because it may be relevant to consideration of whether the claimant will suffer financial prejudice and that's generally going to be relevant. So sometimes there will be a negligent solicitor if you like. Somewhere about um in the case of RsL and CNN nickel exercised its discretion under section 30 three. to allow a claim for damages brought by the claimant in respect of sexual, physical and emotional abuse inflicted by her adoptive Father in the 1990s. And in the year 2000 she was between I think seven and 14. The primary limitation expired In September 2007, but in determining whether to exercise its discretion to dis apply that period pursuant to Section 33, the court had to look at the reasons for the delay and any potential prejudice to the defendant. The judge in that case said the court had made a mistake in dis applying the limitation period in respect. Um uh A clinical negligence case was referenced, a case called Pen nine and Mezza from 2017. Um weakness of the claim may well be relevant here in the case of rsl, the degree of prejudice to the claimant in failing to allow the action to proceed far outweighed the prejudice to the defendant if permission was granted. So the court is required to do effectively are balancing exercise between prejudice and the claimant, the claim doesn't go on and defendant if it does in historic sexual abuse cases. And there's been so many of these in the recent years cases like f said oh and Adams, the Claimant began the instant proceedings in June 2000 16 and that was between 25 and 30 years after the expiry of the applicable limitation period for each assault. And he'd sought to dis apply if you like. Um the various limitation periods pursuant to the act under section 33 the court exercised its discretion to dis apply that limitation period. Um It's a terrible story of a young man who's been groomed and sexually abused by his teacher from about the age of 13, um, and had continued contact with the teacher for many years after he had left school, the court took the view the later incidents were a continuation of that manipulation. Um, and you know that the school was vicariously liable throughout that entire period. I think for every case like that with a claimant successful, we have to bear in mind there are, there's the alternative. So for example, Murray and definition from 2018, the court refused to dis apply a limitation period and allow a claim of historical sexual abuse by a volunteer teacher. Um, to proceed against the religious order by way of vicarious liability where the teacher was dead. Um inhibiting the manner in which the order should conduct A defense. So on. The fact, the 34 year delay in bringing the claim was seriously, seriously prejudice the prospects of a fair trial. So I think it is important to address what actually happened in the period. It's not just the period of time is the events that have happened. And we can see from shortly coming to the end of the webinar. We can see from Abyan Chatham's, the school exercise its power. Are the court sorry, exercise its power under the limitation act to dis apply the ordinary time limit as extended for bringing a claim against a school for personal injuries arising out of sexual assaults committed against the claimant by her teacher and Guardian, more than 20 years after the abuse had occurred. And the claimant, the court took the view had discharged the burden of showing it would be equitable to allow the action to proceed to be determined on its substantive factual and legal merits um claims under the SK X and Manchester City Council. Um sadly, that claim a limitation victory. It's an interesting case actually, 28 years after the events that took place, um a limitation victory. But the claim was dismissed on the basis that court didn't take the view um that the local authority um was going to be responsible, if you like, vicariously liable for the actions of the perpetrators. So, you know, a Pyrrhic victory, really, but an interesting one with the court took the view that kind of delay could lead to a limitation victory and the same thing. Exactly the same thing happened in the very horrible and sad story of Blackpool Football club and D. S. N. Where again the claims were dismissed on the basis. The court didn't take the view that vicarious liability was in place on the part of Blackpool Football club. Yet a limitation victory um was had in that case um decades after the index events. So you know not always is a limitation victory. A whole victory of the if the vicarious liability aspect is not present in a sexual abuse case. But they're interesting cases to establish um actually what happens is that long long periods of time are not necessarily in terms of delay, a bar to recovery in cases like feed e a ministry of Defense a fairly short delay less than 19 months. Um Some information told he couldn't rely on a claim, he decided not to bother to sue the M. O. D. Uh The action has been brought any earlier. The evidence would have been no more cogent. There were contemporaneous records, the medical evidence was consistent. Um There was recorded data about the weather on the day it was about a fall, he suffered a hip injury and in April 2014 his G. P. I told him to get advice Urgently and he brought proceedings less than six months later. The M. O. D. Had not been prejudiced. Whereas he would be significantly prejudiced if he could not bring the claim. Um You know one of the difficulties I think with cases like that is you know the claim being not particularly strong. Um and reasons to doubt the claimants credibility. Uh 19 months. The court said you know frankly was not a short delay and further that during that period the climate had made his clinic claimed during for the personal injuries against his solicitors and that he'd um the M. O. D. Had said the task of investigating the accident would be difficult caused by the delay. You know the evidence would be less cogent. So it's really interesting I think that um the claimant was not allowed to proceed in his claim Where there was only a 19 month delay. Whereas we've seen some where claimants were permitted to go ahead with their claims where the delay was 28 or 30 years. Um interesting little side issue with that feed case. A comparison with the seven year limitation period for claims to the A. F. C. S. So the no fault compensation scheme if you like was unhelpful because of course that scheme was in fact no fault. Um Consequently the claim was stale. Consequently the court decided section 33 Should not be dis applied. Last comment if I may just to say persons under a disability of course are protected by section 28. So that's miners and those who lack capacity. That's the case when the cause of action accrued time doesn't run until the case claimants ceases to be under that disability. And of course for Children, it runs in relation to Children from when they attain the age of majority. Normally, these cases will be dealt with by way of preliminary issue. So KR and bring all in is a good example of that preferable and feasible to determine the limitation point by way of a preliminary hearing. And then last issue. Just to say case of Godfrey morgan is an example of this. We need to be careful. Um It's not permissible to try and join parties to acclaim after expiry of the limitation period by amending the claim so as to pursue both the original defendant and a new defendant jointly or in the alternative. That is not a substitution permitted by the limitation act. That section 35. Sub six. Sub um and section 19.5 sub three sub a. The section on removal addition and substitution of parties also doesn't allow that kind of amendment. So, if there are amendments after um the limitation period has expired. Um Clearly the power to allow an amendment by substitution because I'm a mistake in The name of the party which you can find in 19.5 um Sub three sub um doesn't make a substantive change to the earlier approach. So the key is that the claimant must have intended to sue a instead of be not in addition to be. So that didn't work in this case for the claimants. The relevant provisions don't invest the court with power to allow an amendment to bring in a new party after the limitation period whenever it constituted it equitable. Um So we need to be aware that sort of solution to the problem. Um Substitution has no basis in part 19 of the rules. We read the rules. We know that um it's a new party. Uh if we find That the name has changed and the identity has changed to be aware that we can't use rule 19 to fix problems of that kind after the limitation period has expired. Thank you so much for staying with it. I'm sorry. It's been a little over an hour. I hope. That's not been too onerous. And thank you very much for listening. Mhm.
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