John M. Lynch on the Statute of Limitations
What does the Statute of Limitations mean?
The Statute of Limitations is the length of time a person has to make a claim following an incident that gives rise to the claim. Once the specified time has passed an action can no longer be brought. The logic is simple and grounded in common sense principles: after a certain length of time it is impossible to get accurate evidence – be it witnesses, people’s recollection etc. and the threat of legal action cannot hang over a person for an indefinite time.
Therefore, the law stepped in with the concept of the Statute of Limitations.
How long does a person have to take action?
If a person is outside the limitation period, they cannot take an action.
For personal injuries claims an injured party has, by and large, two years.
Although the Statute of Limitation for personal injury claims is two years, there is an escape clause where a person has no knowledge that an injury is connected with a wrong committed by someone else.
This situation arose in the UK in what became a well-publicised case. An illness known as asbestosis* was discovered, which in many cases resulted in fatalities. It was caused by asbestos which was a product that was used in the construction of roofs a number of years ago. Twenty or thirty years later it was discovered that asbestos caused problems with lungs to the extent that people died. Effectively, they were a slow burner and by the time the danger of asbestosis was discovered the Statute of Limitation of six years had long reached its limit.
As a result of Asbestosis disease the ‘date of knowledge’ was evolved based on the rationale that if you didn’t know about it you couldn’t possibly have done anything about it.
Whether the date of knowledge starts from the date that you consult with your doctor or the date where it became well known in the public arena is generally decided by the courts.
*Asbestosis is caused by long-term, repeated exposure to asbestos, a natural fiber that is used for various industrial purposes, such as insulation and car brake linings. Fibers of asbestos in the air are inhaled and become lodged in the lungs. As a result, lung tissue is scarred and lungs are unable to contract and expand normally.
Does the ‘date of knowledge’ apply in Ireland?
The Statute of Limitations (Amendment) Act 1991 introduced the ‘date of knowledge’ for personal injury cases. The date of knowledge is applied when the date the wrong/injury takes place differs from the date the wrong/injury is discovered. This means that in situations where the injury may not be obvious at first the time limit for actions does not begin until the injured party is aware of the injury. The date of knowledge has been applied in medical negligence cases; a person who receives a negligent medical procedure may not have knowledge of the injury at first until the injuries cause problems or they become aware that such problems arose as a consequence of such procedures. The ‘date of knowledge’ ensures that the time limit does not run out before a person realises they have an injury/action.
What recent example is there of cases where the date of knowledge applied?
The DePuy ASR Hip Implants were recalled in August 2010 so for most DePuy patients the time limit within which they can lodge a claim for compensation will end on 25th August 2012. i.e. they have two years from the date of knowledge which is 26th August 2010 when the defective implants were recalled in Ireland.
Is the Statute of Limitations ever amended/are the legal time limits ever extended?
The Residential Institutions Redress Act 2002 was amended to allow victims of residential abuse in State institutions to seek redress from the courts.
Initially, the closing date for applications to the Residential Institutions Redress Board was 15th December 2005. However, in exceptional circumstances, an extension of the time period was permitted to allow “late applications” up until 17th September 2011.
A couple of weeks ago Gillian O’Mahony spoke about symphysiotomy on the show. A symphysiotomy is a barbaric procedure where the obstetrician breaks a woman’s pelvis, cutting it into two to facilitate the delivery of her baby. This procedure was discontinued and replaced by a caesarean operation in the early part of the 20th century in the developed world, except in Ireland.
1,500 Irish women were victims of symphysiotomy between 1944 and 1992.
Women who have had a symphysiotomy suffered permanent damage as a result. Many women have suffered a life of pain and discomfort because of incontinence, chronic pain, prolapsed organs, neurological and psychological problems with some dependent on wheelchairs.
Recently the Supreme Court upheld a High Court decision that a symphysiotomy carried out on an 18 year old in 1969 at Our Lady of Lourdes Hospital in Drogheda was “entirely unjustified and unwarranted”. The woman in this case did not know that she had a symphysiotomy until almost 33 years later when she heard a radio programme about it. She suffered chronic on-going pain, continuous back pain, incontinence and depression as a result of the symphysiotomy. The Supreme Court awarded compensation in the sum of €325,000.
This case was permitted due to a technicality but most cases are statute barred because the procedures took place between 10 and 60 years ago. (1944-1992). Only about 200 out of 1,500 women who had the procedures are still alive.
The Organisation for Survivors of Symphysiotomy, and many TDs including Gerry Adams are calling for an amendment to the Statute of Limitations so that survivors of symphysiotomy can seek compensation and damages from the State.
Does the Statute of Limitation apply to other areas of law other than personal injuries?
The example of asbestosis disease relates to tort law. The Statute of Limitation also applies to contract cases where if a person does not do his work properly because of negligence the injured party is entitled to sue the person in contract within a period of six years under contract law.
Interestingly there is no date of knowledge in this area of law.
This was highlighted In the UK in 1983 Pirelli General Cable Works Limited -v- Oscar Faber and Partners involved a job carried out on concrete silos, one of which collapsed long years after it was built. However, the injured party was not successful as the limitation period had expired and it was decided that the date of knowledge did not extend to contract law.
What are the time limits for different areas of law?
- If going after an account – 6 years
- Tort other than personal injuries – 6 years
- Contract – 6 years
- Enforcing an arbitration award – 6 years
- Estate – 6 years or 12 years depending on circumstances
- Land – Adverse possession – 12 years, or 30 years if the State are taking an action
- Unfair dismissal – 6 months
Do the Statute of Limitation time periods ever overlap?
The Statute of Limitations is a complex area of law that needs to be checked in each individual case to ensure that you are not out of time to take your case to Court.
A case that has illustrated this is DePuyASRHip Implant Recall which has a mix of different areas of law – which could include Product Liability and medical negligence and personal injury.
What if I am owed money and I am offered part-payment, does the ‘clock stop ticking’ on the limitation period and should I accept the money?
If someone acknowledges a debt this generally stops the clock running out.
However, if you accept the payment and it is only a part payment you should ensure that you acknowledge the payment as a part payment only.
Review your Existing Proceedings.
You should review the solvency of the defendant if you have started your case against someone.
The solvency of the other party is now a critical factor in taking a case and in refusing an offer in settlement or, if offered, part-payment.
A lot of people have been caught in the last two years as they started proceedings against a defendant who was solvent when proceedings started and then became insolvent.
If there is a possibility that the defendant may be in financial difficulty do a company search to determine whether this is rumour or fact at e.g. companies’ office or local district / circuit court.
Where does ADR (Alternative Dispute Resolution) fit into all of this?
The option of resolving disputes out of Court is now becoming a big issue because of the cost, the time and the uncertainty of litigation.
Clients are, therefore, well advised to consider mediation or other forms of alternative dispute mechanisms as a viable option to a fully contested Court hearing.
At Lynch Solicitors we are proficient in both approaches and will tailor each case to take advantage of either or both. Many cases benefit from a mixed approach and it is essential to put a case plan in place to take advantage of this.
If I have suffered an injury how can I ensure the time limit I have to make my claim will not expire?
It is very important to contact us, at Lynch Solicitors, immediately when your difficulty or injury occurs, or as soon as you have knowledge of your injury, to ensure your case is not affected by the Statute of Limitations.