Tipp FM Legal Slot – 21st August 2012
John M. Lynch on Statute of Limitations[soundcloud id=’167071213′]
Remind us again, John, 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. Basically it is a timeframe within which people can make a legal claim. Once the specified time has passed an action can no longer be brought.
The Statute of Limitations may also worked negatively against someone, for example with squatter’s rights after a certain time period – 12 years – a person may lose their land to a squatter who has been in possession of it for a certain length of time – 12 years.
Why is the Statute of Limitations necessary?
It is a balance act based on policy. It balances the rights of a person to take a case and maximises their right to justice with the rights of a person not to have a case hanging over them for an unending period of time.
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.
What are the time limits for different areas of law?
- If going after an account – 6 years
- Tort – Road Traffic Accident, Employment – other than personal injuries – 6 years
- Personal Injuries – 2 years
- Product Liability – 3 years
- Defamation action – 3 years
- Breach of 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
Last week we spoke about the ‘date of knowledge’. When would this apply?
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?
DePuy Hip Implant Recall
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.
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.
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.