The facts

The claimant pursued a personal injury claim against his former employer. It was alleged that on 4 April 2011, he sustained injury to his back due to a faulty bench and was subsequently given different duties.

The claimant alleged that on 7 August 2012, he was asked to carry out work which he refused to do because he thought it was unsafe. On 8 August 2012, the claimant alleged that he was called into a meeting, suspended and told to leave the premises.

The claimant alleged that he had been forcibly walked to the car park and forced into his car which had aggravated his back injury. The defendant took statements from other employees and carried out investigations and the claim was eventually dismissed.

The claimant pursued a claim for personal injury against the defendant for the back injury he had sustained on 4 April 2011. The defendant admitted primary liability but causation and quantum were hotly disputed.

In April 2015, the claimant made an application to the court to amend his claim to include the incident that had allegedly occurred on 8 August 2012. His solicitors then applied to adjourn the hearing of the application, which did not take place until after the three year period for limitation had expired. As a result, the claimant was refused permission to amend the claim to include the 8 August 2012 incident.

In April 2016, the claimant pursued a separate claim against the defendant for the incident that had allegedly taken place on 8 August 2012 but the judge refused his application to disapply the limitation period so the claim could not proceed.

The claimant appealed the decision.

Decision

On appeal, it was held that the claimant had no excuse for missing the time limit for amending the original claim to include the alleged incident that occurred on 8 August 2012. It was noted that the claimant had adjourned the application hearing when they should have ensured that it took place as early as possible and prior to the expiry of the three year limitation period.

Also, the claimant had not pursued the separate claim for the incident on 8 August 2012 until eight months after the limitation period had expired.

It was noted that the judge had taken into account the relevant evidence and was entitled to reach the conclusion that he had. In particular, the defendant had documentation but this was in respect of internal investigations, which was not the same as investigating a formal claim for personal injury. The judge had been entitled to find that the claimant would be prejudiced if the claim was allowed to proceed.

The Court of Appeal held that the claim for the incident on 8 August 2012, lacked the necessary clarity to enable the defendant to know exactly what was being alleged and to fully carry out investigations. Also, the court noted that the psychologist’s report had only commented in respect of the 7 April incident.

It was held that the defendant could rely on 8 August incident as an intervening event but that inquiry into causation did not mean that a fair trial was needed in respect of a claim that was out of time on an intervening event.

The claimant’s appeal was dismissed.

What this means for you

This case highlights that judges have a broad range of discretion when considering if there are grounds for disapplying the limitation period. Here, the claimant had adjourned the hearing of their application to include the incident that occurred on 8 August 2012 in their original claim. It was seen that this hearing could have easily taken place before the limitation period expired and after being refused permission to amend the original claim form, the claimant significantly delayed in bringing a separate claim for the incident on 8 August 2012.

It is necessary at the outset of a claim to consider any issues concerning limitation. In respect of personal injury claims, a claimant has three years from the date of the accident or from the date of knowledge to bring their claim. If a claimant has not brought their claim within the three year limitation period then the claim will be statute barred under the Limitation Act 1980.

It is important to understand the time periods for calculating limitation and to be live to the issue when considering whether a claimant has issued their claim in time or served the claim during the validity of the claim form, i.e. within four months after the date of issue.

It is essential that any issues in respect of limitation are pleaded in the defence. Also, a defendant can dispute the court’s jurisdiction when filing the acknowledgment of service and within 14 days can make an application to the court to strike out the claim or seek summary judgment on the basis that the claim is statute barred.