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Time limitations for brain injury claims

If you have suffered a brain injury as a result of an accident that wasn’t your fault, it’s important to be aware that there is a time limit within which you must lodge your claim with the Court.

Section 11 of the Limitation Act (1980) sets out the time limits, which for the vast majority of claims, is 3 years from the date of injury or the date of knowledge. This is commonly referred to as the Limitation Period. So by way of example, if you are injured in a road traffic accident in England and Wales on 25th March 2020, you have until 25th March 2023 to register your claim with the Courts. If the accident occurred abroad, different time limits may apply.

What is the ‘date of knowledge’?

The date of knowledge is defined as when a claimant first had knowledge of all of the following:

  • That the injury in question was significant (they would reasonably have considered it serious enough to justify bringing legal proceedings against the defendant);
  • That the injury was wholly or partly attributable to an act or failing on the defendants part;
  • Of the defendant’s identity; and
  • Of the identity of that person and any relevant additional facts, if it is alleged that the injury was caused by someone other than the defendant.

Date of knowledge is often the same as the date of accident, but is most frequently relevant in cases involving clinical negligence (also referred to as medical negligence). In these cases, it may not at first be obvious that the brain injury has occurred as a result of negligent medical care, and the date of knowledge will be deemed to be the date that the injured party might reasonably have been expected to discover themselves or with the help of expert advice, that the injury occurred as a result of negligent care.

Exceptions to the limitation period

There are certain exceptions to the 3 year limitation period, including accidents abroad or whilst travelling on an aeroplane, boat or international train.

Additionally, if your injury has resulted from a violent assault, and the claim is being made through the Criminal Injuries Compensation Scheme, there is a 2 year time limit.

Different rules also apply to children and for those who lack mental capacity. If a child (often referred to as a minor) sustained an injury prior to turning 18 years of age, they have until their 21st birthday to bring a claim.

If someone lacks mental capacity, there is no time limit for bringing a claim. However if they regain mental capacity, the three year time limit starts from the date they regain mental capacity.

Can a Court extend the limitation period?

A Court does have the discretion to override the 3 year limitation period, although this is quite uncommon. In considering whether to do so, they will take into account:

  • the length and reason for any delay
  • whether the delay will have an impact on the evidence available
  • the defendants behaviour since the incident occurred and how they have responded to reasonable requests for information
  • the duration of any disability suffered by the claimant
  • the steps taken by the injured party to obtain medical, legal and other expert advice and to act on this advice.

What happens if a claim is not brought within the limitation period?

A claim not lodged with the Court within the required time period will be deemed time or statute barred unless a Court agrees to extend the limitation period. This means that you will not be able to make a claim for compensation for your injuries at that time or at any time in the future.

What to do if you think you may have a claim for compensation?

If you’ve suffered a brain injury as a result of an accident, assault or negligent medical care, it’s advisable to speak to a solicitor as early as possible who will be able to investigate your claim and advise you of the next steps.

With thanks to Tim Jones of Enable Law for his assistance with this article.

About Tim Jones

Tim is a Legal Director at Brain Injury Group member law firm Enable Law who have offices in London, Southampton and throughout the South West. Based at their Taunton office, Tim assists clients all over England and Wales and is happy to travel to meet clients at their homes, in hospital or other convenient locations. With over 20 years’ experience, Tim specialises in cases involving brain and spinal injury, whether as a result of a violent attack (criminal injury claims), accident or clinical negligence.

Tim advises Brain Injury Group on our training programme for brain injury specialist lawyers and is a member of the Association of Personal Injury Lawyers, a volunteer for the Spinal Injuries Association and supports his local Headway, participating in charity fundraising events and with their annual conference.

For more details, or to contact Tim, view the Brain Injury Group profile for Tim Jones at Enable Law.

About Brain Injury Group

Brain Injury Group was set up in 2011 to provide people affected by brain injury with a focal point to find people with specialist knowledge of brain injuries to assist them with legal, financial and welfare advice.

In addition to our legal and welfare advice service, our popular website features an A-Z of services and goods specifically of interest to those affected by brain injury, their families and the professionals who support them.

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How can we help?

Whether you are considering making a claim, need other specialist legal advice, are looking for information on continuing healthcare funding or welfare benefits, or access to a broad range of services and professional support through our online directory, the Brain Injury Group provides a gateway to the support you need.

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