An explanation of time limits in litigation
There are certain legal basics that trade union representatives and full-time officers should know about. One of them is the time limits for bringing court proceedings for different types of personal injuries.
Tony Lawton, a personal injury partner with Thompsons, explains what they are and why they are important.
Why are there time limits?
The first question is why the law has time limits. The first, and most obvious, purpose is to avoid claims being made long after the event, when the person or organisation has no chance of defending themselves properly, usually because witnesses have disappeared or documents have been destroyed.
Having said that, however, it is sometimes difficult to ascertain a rational basis for some of the time limits that exist. For example, employment law has a three-month limit for bringing a claim for breach of contract in an employment tribunal. Yet, the courts have a limit of six years for the same claim.
In the personal injury field, the law is governed by the Limitation Act 1980. The main time limit is three years from the date of the accident or the date from when the “cause of action” arose.
This means that the claim form has to be issued in the court before the expiry of the three-year period. There is then a further period of up to four months from the date of issue of the claim form in which to serve it on the defendants.
The position in respect of industrial diseases is rather more complex. There is still a three-year limit, but the three year period begins to run from the date when the claimant knew or ought to have known that they had suffered a “significant” injury, and that the injury was caused in general terms by some fault of their employer.
There is a mass of case law trying to interpret what that means, but the bottom line is that, regardless of what medical advice the claimant may have had, the three-year clock begins to tick from the time when they believed that the injury was caused by their work.
So, for instance, a worker exposed to asbestos dust 30 years ago will not have to worry about time until they have been told by a doctor that they have a condition that is likely to have been caused by asbestos dust, and the clock begins from there.
Yet someone who has worked in excessive noise for many years, has noticed some loss of hearing for many years, and has believed for many years that work is the likely cause, is likely to be out of time if more than three years have elapsed since they formed that belief.
Other time limits
But that’s not all. There are other situations to which different time limits may apply. For instance, a member may be assaulted at work either by a member of the public or by a work colleague in which case there is the likelihood of a successful claim to the Criminal Injuries Compensation Authority (CICA).
However, the time limit for bringing these claims is two years not three. In the same situation, the injured member assaulted at work will also have a potential claim against the assailant, against whom court proceedings must be commenced within six years.
Members may go abroad on holiday or on business. If they are injured while travelling as a passenger on an aeroplane or a ship, any court proceedings would have to be commenced within two years. If they suffer injury in a foreign country, and the only valid claim is against a defendant in that country, then they would need to find out the time limits in the country where the accident happened. Time limits around the world vary enormously and some of them are a lot shorter than those that apply in the UK.
Do time limits matter?
Most certainly. The limits are applied very strictly, although the courts do have discretion under Section 33 of the Limitation Act to allow a case to proceed even though the three-year period has expired. This discretion is applied sparingly, however, and usually only if the claimant can show that the employer has not been prejudiced by the delay.
So, it’s crucial that trade union reps know the importance of time limits to be able to advise members accordingly. But, over the years, some have unfortunately misinformed members, for example advising them to delay bringing a claim for a long period until after they have operative treatment.
Or in another example, advising a woman with a repetitive strain injury that there were no time limits applying to those sorts of cases. Even after the member had been to the Citizens Advice Bureau and been told there was a three year limit, the union representative told her that “they have got that wrong!”
Union representatives must be aware that, if, as a result of their action (or inaction), a member fails to bring the claim in time and as a result is unable to pursue it, that member will have a potential claim for negligence against the union. This will be the case whether the representative is a full time officer or a workplace representative.
Given the different time limits, it is obviously asking a lot of union representatives to know the details of them all. That is why, in reality, all they need to know is that they are important and that the first question they should ask a member is “when did it happen?” It is also crucial that they advise members to obtain legal advice quickly.
And they should also advise members to bring claims quickly. Even if they are still within the time limit, it is much more difficult to pursue a case successfully if there has been a long delay before seeking advice.
Memories fade, witnesses die, cannot be traced or leave the country; documents may be destroyed, relevant equipment changed or sold. It is an uphill struggle trying to piece together the evidence to win a case long after the event. It is far easier to win a case when the evidence is fresh.
So, the message to all union representatives is clear. Be aware of the time limits when advising members, and make sure that they get legal advice quickly. Union reps often have a major part to play in assisting members to win their cases. An awareness of the importance of time limits is therefore crucial to the success of those cases.