In England & Wales, the time limit for personal injuries actions is generally three years from the date on which the cause of action accrued or the date of knowledge (if later) of the person injured.
The High Court in London recently considered, as a preliminary issue, the discretion exclusion of that time limit.
The Claimant had his right knee successfully replaced in 2008. The following year, he underwent a similar procedure with his left knee. There were, however, complications, and the Claimant underwent a further operation in 2012. He felt “so let down and disappointed” that he then instructed solicitors.
The Claimant’s solicitors instructed a Consultant Orthopaedic Surgeon who concluded that the standard of care fell within that which would be regarded as acceptable by a reasonable body of medical opinion. This was relayed to the Claimant with a reminder of the limitation period of three years to issue proceedings. His instructions were to discontinue the claim.
Unfortunately, the Claimant’s condition continued to deteriorate. Ultimately, an above the knee amputation of the left leg was undertaken in 2016. He instructed new solicitors in June that year but did not actually meet with them in person until 2018. A report was received from a consultant orthopaedic surgeon in May 2019, opining that the amputation was avoidable but for the substandard care. Proceedings were issued the next month without any pre-action protocol letter of claim being sent to the defendant.
…the claim was brought at least 7 years after time began to run and thus at least 4 years after it became prima facie statute-barred. The sole remaining question is therefore whether the Court should exercise its discretion and disapply the limitation period.
The deputy High Court judge concluded:
… the claim was not brought within 3 of years of the Claimant having the relevant knowledge within the meaning …of the 1980 Act but that it would be equitable in all the circumstances to disapply that time limit and permit the claim to proceed.