New Years Resolutions Part IV
Litigation / Personal Injuries / Accidents / Medical Negligence
• Statute of Limitation
• Review solvency of defendant
• Review your case
• ADR – Arbitration; Mediation – Case progression
• Listing Delays
• DePuy
In Clonmel
Jervis House
Parnell Street
Clonmel
Co. Tipperary
Tel 052 6124344
{00267362-1}
What is the Statute of Limitations?
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.
Example
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
1
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
1
http://www.ucsfhealth.org/conditions/asbestosis/
In Clonmel
Jervis House
Parnell Street
Clonmel
Co. Tipperary
Tel 052 6124344
{00267362-1}
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.
Does the Statute of Limitation apply to other areas of law?
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.
Example
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
Overlapping Statute of Limitation time periods
The reason that I highlight the significance of the Statute of Limitations in terms of New
Year’s Resolutions is that it 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.
Example
A recent case that has illustrated this is DePuy ASR Hip Implant Recall which has a
mix of different areas of law – which could include Product Liability and medical
negligence and personal injury.
In Clonmel
Jervis House
Parnell Street
Clonmel
Co. Tipperary
Tel 052 6124344
{00267362-1}
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 and Partners 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.
Listener’s Enquiry into studio
Q) Listener’s car went up on fire, the battery exploded. The car was still under
warranty. Is the manufacturer responsible / liable or should s/he claim from the
Insurance company?
A) Recover against most expedient party.
Under what basis could you issue proceedings?
• Warranty
• Sale of Goods and Supply of Services Act 1980
• Product Liability legislation
Settle with insurance company on the basis that future car insurance will not be loaded
as they will be able to recover from other defendants i.e. manufacturer.
In Clonmel
Jervis House
Parnell Street
Clonmel
Co. Tipperary
Tel 052 6124344
{00267362-1}
Litigating against multiple defendants would be very expensive.
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 and Partners, 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.
If you have any queries in relation to the above area or wish to discuss any other legal area with
us please contact us on info@lynchandpartners.com.
In Clonmel
Jervis House
Parnell Street
Clonmel
Co. Tipperary
Tel 052 6124344
{00267362-1}