How Long After an Accident Can you Make a Claim?

The LA 1980 is an Act of Parliament that applies only in England and Wales. It sets out the time limits for a person or organisation to claim personal injury compensation for breaches of law, including matters related to land, trusts, torts, and contracts.

If you suffer a personal injury due to an accident or clinical negligence, you have three years to claim compensation.

The three years run from the date you were injured or the date you became aware of the damage (known as the ‘date of knowledge’), whichever is soonest.

Should the Claimant be a child at the time they suffered a personal injury, they have three years from the date of their 18th birthday to bring a claim, so the claim must be brought before their 21st birthday.

How is ‘date of knowledge’ decided?

Under Section 14 of the LA 1980, the Claimant’s date of knowledge of a personal injury is when they realised or could be reasonably expected to realise based on their circumstances:

• that the injury in question was significant;
• that the injury was attributable to the act or omission which is alleged to constitute negligence, and
• the identity of the defendant.

The date of knowledge often arises in medical negligence cases because, in claims such as those for misdiagnosis, the harm caused by the negligence does not become apparent for some time.

Regarding when a Claimant could have ‘reasonably expected’ to have knowledge of their injury, Section 14(3) of the LA Act 1980 provides:

For the purposes of this section, a person’s knowledge includes knowledge that he might reasonably have been expected to acquire –

• 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.

If the judge is asked to exercise discretion in an out-of-time case, they will look at factors such as the severity of the Claimant’s symptoms, whether their personal circumstances caused them to delay, and whether they sought the help of a medical or other expert.

The personal injury experts working on your case will gather the evidence and any witness statements needed to prove that you only recently acquired knowledge of your injury and that the delay in bringing a claim was reasonable.

Section 33 of the LA 1980 gives the Court discretion to exclude the time limit for personal injury or death if it believes it is equitable to do so.

In Chief Constable of Greater Manchester v Carroll [2017] EWCA Civ 1992, the Court of Appeal summarised the general principles around applying for discretion under Section 33:

• The discretion given to the Court by Section 33 is a general one.
• The Claimant has the burden of showing that the prejudice of not allowing the claim to proceed is greater on them than any prejudice to the Defendant. For example, in a brain injury case where the Claimant requires extensive rehabilitation, they need to show that being denied the right to make a time-barred claim would cause them greater prejudice than the prejudice that may be suffered by the Defendant, such as difficulty in getting witnesses to remember what happened.
• The Defendant must prove that any evidence they produce will be less compelling because the time-barred action has been allowed to proceed. The Court will not look favourable on the Defendant if they have deliberately destroyed or lost evidence, but ultimately, the trial must be fair, or it cannot proceed.
• The Court must have regard to the length and reason for the delay, and whether the Claimant acted promptly and reasonably once they realised a claim existed. The duration of the Claimant’s disability will also be considered, as will the Defendant’s conduct after the claim arose, including whether they were cooperative when requests for information and documents were made.
• Regarding the reason for the delay, if the Claimant’s legal advisors caused it, the Court is likely to look more favourably at allowing the claim to proceed.

In Ministry of Defence v AB and others [2012] UKSC 9, a majority of Supreme Court Judges ruled that claims for personal injuries that occurred in the 1950s from nuclear testing were time-barred and the Court should not use its discretion to allow court proceedings to continue.

Central to the Claimants’ argument was that they did not know their injuries were attributable to the Defendant’s conduct (or failure to act) before the limitation period expired. However, the Supreme Court stated that knowledge requires only a reasonable belief in attributability.

‘Attributability’, according to the Judges, means that it is something more than a fanciful suggestion to argue that the Defendant is liable. Certainty is not required; therefore, the standard is a low one.

In this case, media and publicity had linked the MoD to the Claimants’ injuries for many years.

Ministry of Defence v AB and others clearly illustrate the importance of contacting a Personal Injury or Medical Negligence specialist as soon as you believe another person or organisation has caused your injury.

You may think there is only a slight chance that the Defendant is liable, but the law may see things differently. An experienced personal injury team can swiftly tell you if you have a strong claim.

One area of personal injury claims in which the Court’s discretion regarding time-barred claims often applies is in historic sexual abuse claims.

In these types of cases, the survivor is normally dealing with feelings of fear and shame. Although the abuse is never their fault, it is understandable that it can sometimes take years for survivors to come forward.

The Courts recognised this in A v Hoare and others [2008] UKHL 6, where the House of Lords allowed six appeals against rulings that claims for sexual assaults, which took place many years before proceedings commenced, were barred by the LA 1980.

The Lords also indicated how the flexibility provisions for limitation should be applied in sex abuse cases.

In BXB v Watch Tower And Bible Tract Society of Pennsylvannia and another (Rev 1) [2020] EWHC 156 (QB), the Court took into consideration the Claimant’s feelings of humiliation, upset, and shame, and her fear that she would not be believed by church elders, and allowed her claim to proceed despite the fact the alleged abuse took place 24 years ago.

In describing why she did not come forward earlier, the Claimant told the Court:

“When later I did report the rape to the elders, I was so humiliated and upset by the way it was investigated and by their decision not to take any further action that I felt betrayed. I was told by the Elders not to tell anyone else about it. I obeyed this direction and did not go to the police, as I should have done. I did not think I would be believed anyway, just as everyone else appeared to disbelieve me. Instead I left the congregation and my family.”

An historic sexual abuse claim specialist will have received extensive training in managing these types of cases. They will listen to you with compassion and be 100% on your side when you are ready to tell your story.

If they believe you have a claim, they will do everything possible to get the Court to use its discretion to allow your claim to proceed.

The easiest way to start a personal injury claim is to contact a legal advisor immediately through an online form or by calling 0800 234 6438 after your accident.

Your personal injury claims lawyer will likely take your case on a No Win, No Fee basis. This means that if you lose your case, you will not have to pay any legal fees, although you will need to pay any expenses related to your claim (these are known as disbursements).