The majority of personal injury claims made in Scotland are subject to a time limit, also known as a time bar, within which the claim has to be settled or, a court action raised. The time limit to exercise either of these options is 3 years. This all seems straightforward so far. However, what can be more complex and require investigation is when that 3 year clock begins to countdown.
When does the 3-year time limit start?
The circumstances in which the clock begins to countdown are set out in the Prescription and Limitation (Scotland) Act 1973, most notably sections 17 & 18.
In the first circumstances where an identifiable accident occurs this is easily stated as 3 years from the date of the accident. For example, if you have a fall at work which causes injury you have 3 years from the date you had the fall to settle your claim or raise court proceedings.
Whilst the above can be considered straightforward issues begin to arise in claims where injuries develop over a long period of time for example industrial disease claims or repetitive strain claims. In such situations, there is no definitive accident date that we can hang our hat on. In these circumstances the clock will begin running in the following situations:-
- From the date of last negligent exposure; or
- The date on which the pursuer became, or on which, in the opinion of the court, it would have been reasonably practicable for him in all the circumstances to become, aware that an injury/disease was related to their employment.
Whichever of the above is later.
Both of the above circumstances throw up their own issues.
Point 1 noted above is whereby a person continues to be exposed to a particular type of work activity, such as excessive noise or heavy vibratory tools use, and then that exposure is reduced to a non-negligent level or stops. At the point of reduction or cessation of exposure the 3 year time limit begins. For example, where an employee has a diagnosis of Hand Arm Vibration Syndrome (HAVS), and his employer continues to instruct the employee to use vibratory tools for 1 year post-diagnosis before removing the employee from the tools the 3 year time period would commence from the date of removal from the tools i.e. the last date of negligent exposure.
The date of knowledge is where the employee has a reasonable belief that the work activity has caused harm. The date of knowledge can be determined by a medical expert providing a definitive diagnosis that a person has an illness that is caused by their work practices such as an employee who uses grinders or jackhammers that causes HAVS. That being said, it is important to highlight that a “reasonable belief” can be formed by a person prior to any official diagnosis.
This can be where the employee has begun to notice limitations that were not once there and has put this down to their work activities. For example, increasing the volume of the TV substantially because the persons hearing has gotten worse due to exposure to noise at work or, If a person is experiencing tingling or numbness in the hands which is worse in cold environments after working with vibratory tools.
Are there exceptions to the 3-year rule?
Section 19A of the 1973 Act gives the Court a specific power to over-ride the 3 year limitation period if, and only if, the court deems it fair on both parties for the case to be heard. This power is not widely used and the responsibility is on the person bringing a claim to show reasonable grounds as to why they had not raised the action prior to the end of the 3 year period.
The importance of bringing a claim in a timeous fashion is ably demonstrated in the case of Warner v Scapa Flow Charters  UKSC 52. The widow of the deceased failed to bring her raise her claim for damages within the appropriate time frame. The defenders argued the claim was time barred. The widow asked the court to use their discretion under s.19A of the Prescription and Limitation Act 1973 to allow the action to proceed in spite of the case being time barred. After first hearing and appeals through the Scottish Courts dismissing the Widow’s action the UK Supreme Court also found the Widow’s claim to be time barred. This serves to demonstrate that the burden on the Pursuer to persuade the court to employ their discretion is high.
The message then to clients is to act fast and contact Harper Macleod as soon as you think you may have a claim to allow time for proper investigation.