Most people who’ve been injured assume they have three years to take action. That’s technically true in many cases, but it misses the harder question: three years from when? The answer can vary significantly depending on the type of injury, the age of the claimant, and a legal concept called the date of knowledge – and getting it wrong means losing the right to claim entirely.
Why early action protects your position
There is a very good reason to start early, and that is not to miss the deadline. But there is also a practical reason that doesn’t get talked about enough. Evidence degrades. We all know that memories fade, and that’s no less true for what an expert witness remembers about the cause of your condition.
Medical records taken at the time of an accident will capture the best possible images, and the most reliable measurements of your injury and how it has immediately impacted your life. Ten-year-old notes about exactly what came up in a conversation with a health professional on being assessed for health issues are far less reliable, and judges know this and take it into account when considering if you can proceed with a case.
This is where specialist legal advice makes a real difference. Firms like Greenbank Lawyers work with claimants to identify the correct date of knowledge for their specific circumstances, which isn’t always obvious and can be genuinely contested by defendants looking to argue the clock has already run. Getting that assessment early means knowing exactly where you stand before time becomes a factor.
When the clock actually starts
The general rule is that the limitation period begins to run on the date of the accident or incident. For latency (i.e. when symptoms of an injury or illness) the clock does not necessarily start running on the day on which it occurs. Rather, the limitation period does not begin to run until the date on which the claimant first knew, or reasonably ought to have known, that the injury was sufficiently serious to justify bringing proceedings and that the act or omission was that of the defendant.
Industrial disease cases are the classic example of this. A disease such as asbestosis may take 20 years to develop following exposure to dust. A worker might be exposed to dangerous levels of dust in the early 1970s but not become symptomatic and therefore aware of the need to litigate until 1994. In such a case, the date of knowledge will be 1994, the date of diagnosis, or the date on which the worker first had reasonable grounds to believe his or her condition might be attributable to conditions in his or her place of work.
It is not uncommon, therefore, for people with latent injuries to miss out because they think the limitation period has long since passed, only to find that it has only just begun to run. Conversely, however it is also possible that a claimant with an older injury who delays in bringing a claim might be out of time if he has already passed the limitation period, despite the fact that his symptoms have only recently become intolerable.
Exceptions that change everything
The two groups place themselves wholly beyond the ordinary rules of litigation limitation.
For anyone under 18 when they suffered an injury, the standard three-year period doesn’t even start until their 18th birthday. So a child injured at 10 has until their 21st birthday to bring a claim. In practice a litigation friend – usually a parent or guardian – could begin a claim on the child’s behalf at any point, but many families wait until the child has become an adult. This makes it far harder to get hold of important medical evidence and the recollections of witnesses all those years later.
Meanwhile, people who don’t have the mental capacity to litigate often face no restriction at all so long as they remain thus incapacitated. The limitations clock only starts ticking if and when capacity is regained. Courts do this on a case by case basis and it is not something to infer by simply reading the rules.
The real cost of waiting
What is important to understand, is that if the limitation period has passed, the legal right to sue is almost always lost. There is an escape provision in all statutes of limitations called Section 33 discretion that allows the court to override the deadline in exceptional circumstances.
It often comes down to how long the claimant waited, why they waited, and how much of a defense the defendant has to the delay. However, Section 33 is applied very restrictively and most cases, regardless of how good they would have been on the merits, will be dismissed if the limitation period was missed.
Proving the case before you even think about court
Understanding the time limits for filing a lawsuit is important, but it’s not the whole picture. When it comes to personal injury cases, the clock begins ticking on the date the injury occurred, but what really matters is when you first knew (or should have known) that it could be legally considered someone else’s fault. Insurers for the parties at fault will use all means possible to disqualify your claim if they believe they are not responsible.
Furthermore, the wheels of justice turn slowly. It could take years for a judge to make a decision on your case. Then there can be delays and appeals. They are in no hurry to get you your money.