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If you think you have a personal injury claim, you may only have 3 years from the date of the incident to issue legal proceedings. In clinical negligence cases, where, say, surgery has been performed negligently or a medical condition has been misdiagnosed or left untreated the position is different, as explained below.

This 3-year deadline is known as the ‘prescription date’. Failure to issue legal proceedings before the expiry of the 3 years can result in the loss of the right to obtain compensation, regardless of the legitimacy of the claim or the extent of the injuries suffered. A claim for compensation may be brought against the vehicle driver, the construction site controller, the homeowner, the employer, a general practitioner or hospital or surgeon.

From a claimant's perspective, the prescription date emphasises the importance of timely action and the necessity of seeking legal advice promptly after injury or being aware of harm suffered. The 3-year prescription date, however, is not set in stone as commencing from the date of the incident in all cases. For example, where employees had been exposed to asbestos but only became aware of the damage caused to their lungs decades later, the 3 years would not run until the ex-employee became aware of the damage suffered as a result of exposure to asbestos.

In clinical negligence cases, assessing the prescription date requires careful consideration of the case facts. It may be difficult to assess and become a contentious issue before the Court. This is because the Court will scrutinise the date the claimant became aware the medical treatment received had been negligent. In addition, the fact that injury has been caused by the negligent treatment may not become apparent for some time, leading to the delayed realisation that a claim may exist. 

Lawyers handling such cases must pay close attention to the prescription date and ensure the claimant’s right of action is not compromised by a failure to issue proceedings within the 3-year window. 

Although the prescription date may be extended by agreement with the other party, it is unwise to rely on this as it is not guaranteed that the defendant will agree. If the prescription date is not extended by agreement, it will be essential to issue Court proceedings within the 3-year window to stop time running and the claim being lost. 

There is the legal doctrine known as empêchment (impediment) that may be relied upon in some instances to stop the 3-year period expiring. Empêchment suspends the running of the prescription period due to an impediment that the claimant is suffering. There are two limbs of empêchment:

• Empêchment de droit (legal impediment): where a claim could not be brought as there was a legal impediment against issuing legal proceedings, i.e. where the claimant is under 18 years of age or if the claimant lacks mental capacity.
• Empêchment de fait (factual impediment) means a claim could not be brought as there was a factual impediment, i.e. it was practically impossible for the claimant to launch legal proceedings because he/she was unaware of the negligence. Many clinical negligence claims rely on empêchment de fait as the negligence is sometimes only discovered at a later date when injury becomes evident and when advice can be obtained. 

The recent case of Pickersgill v Ellis and Others [2021], in which Viberts acted for the Plaintiff, provides a good example of when the prescription date runs in clinical negligence cases. The Plaintiff was diagnosed with having suffered a stroke in 2016 as a result of untreated high blood pressure. The Plaintiff’s legal team argued that, had the blood pressure been diagnosed and treated sooner, the Plaintiff would not have suffered the stroke. An expert report was not obtained on behalf of the Plaintiff until 2018. The expert advised, inter alia, that the Plaintiff’s GP had breached the standard of care owed. 

The question before the Court was whether from 2016 to 2018 the Plaintiff had been under a practical impediment of knowing there had been a failure to advise him of his high blood pressure and to prescribe appropriate treatment. The Court held:-

“Where the suffering of a serious medical condition [i.e. a stroke] might lead a person to take the advice on their previous treatment, unless and until someone says that the treatment fell below an acceptable standard, time should not start to run for the purposes of such claims.  It is only at such a stage does a plaintiff have knowledge of the facts to plead a claim.” 

In this case it was only when the Plaintiff obtained expert opinion in 2018 to the effect that the standard of care he received fell below the acceptable standard that the 3 year Prescription period for clinical negligence began to run. Prior to obtaining the expert report the Plaintiff’s legal team was not professionally in a position to write a letter of claim making serious allegations of professional misconduct. The case was allowed to proceed.

Summary
In summary, the significance of the 3-year prescription period in personal injury and clinical negligence claims must not be overlooked. In clinical negligence cases, whether the 3-year period has expired will turn on the facts of the case as to when the claimant knew he/she had legal justification to allege negligence.

If you consider you may have a potential personal injury or clinical negligence claim, please contact Viberts expert team. Our dedicated personal injury and clinical negligence lawyers are available to assist.