A claimant has three years to commence proceedings from the date of his accident. That date is not easily identifiable for a disease claim where the condition is gradual and insidious. The Limitation Act 1980 states that the time period commences from a claimant’s knowledge that the injury was significant and attributable to his employment with the defendant. It is unsurprising that such a vague definition has resulted in a multitude of case law.

The good news is that 2012 resulted in a number of significant wins by defendants on limitation defences. The courts are applying the provisions of the Limitation Act more favourably to defendants than has previously been the case.

Date of knowledge

In Johnson v Ministry of Defence [2012] Kennedys was able to have the Claimant’s case dismissed despite having admitted liability.

The following question was asked by the Court in Johnson: at what stage should a claimant seek advice on his injuries? It was confirmed that a claimant should be judged objectively, making it less likely he can hide behind a feeble excuse. The test is what a person with the essential characteristics of that claimant, such as age and mental capacity, would do if acting reasonably. The assumption is that a person who suffered a significant injury would be sufficiently curious to seek advice.

It has therefore become more probable that a defendant can fix a claimant with an earlier date of knowledge and increase the prospect of the claim being struck out.

Discretion under s.33

The issue of limitation however does not end at that point. A claimant can still apply to have the claim reinstated under s.33 Limitation Act. Clarity has been given by the Court of Appeal in Sayers v Chelwood [2012] that the burden of proving that a struck out case should be reinstated is on the claimant. This burden should not be construed as either light or heavy but will depend on the circumstances of each case. The court’s discretion is broad and unfettered.

Length of delay

It is often argued by a claimant that a short delay in issuing should not prevent a claim from proceeding. However, a claim does not have to be delayed for decades before a defendant can win on limitation. In Gibson v Jobcentre Plus [2012] the Claimant issued proceedings five years after his date of knowledge. The court considered that this period was prejudicial to the Defendant. Likewise, the court declined to exercise its discretion in favour of the Claimants in Davies and others v The Secretary of State for Energy and Climate Change [2012].

It would seem that the opportunity for a claimant to avoid sanction through this door has been firmly closed.