Wednesday, December 12, 2007

Scottish Law Commission recommends 5 year limit for personal injury claims

The Scottish Law Commission has recommended in a recent report that the time limit of personal injury cases which currently must be proceeded within a three year window from date of incident should be extended to five years.

You can read the Scottish Law Commission's report here : Report on Personal Injury Actions: Limitation and Prescribed Claims (Scot Law Com No 207) (pdf)

The Scotsman reports :

Commission's recommendation will help those 'time-barred' from justice


CONTRARY to public perception, many claims relating to personal injury in the workplace do not involve people being crushed by overturned forklift trucks or falling great heights from warehouse roofs.

In reality, they come about after the pursuer has developed a long-term medical condition directly as a result of spending many years working in conditions that his or her employer should not, in law, have permitted to exist.

This is why the recommendation by the Scottish Law Commission, announced last week, that the limitation for raising personal injury actions should be extended from three to five years (after the diagnosis of illness or injury) is so welcome, because it gives hope to one sector of society that has been "time-barred" from justice.

Although the recommendation relates to several areas, the commission rightly points out that it will be particularly welcomed in cases involving claims for occupational diseases, where gathering evidence to bring an action can be both difficult and extremely time-consuming.

It notes that, in particular, this applies to people who suffer from industrial diseases, which require intensive investigation before proceedings can be brought. For example, before an action can be raised, the injured person's employment history has to be looked into, records obtained, former colleagues traced and statements recorded.

Paradoxically, what exacerbates the problem is that most of the "victims" tend not to be the type of people who complain easily and they are certainly not litigation-conscious: in fact, quite the opposite.

Despite the loss of so much British, and Scottish, heavy industry over recent decades, there are hundreds of thousands of people living today - both still employed or retired - who are suffering, or may yet still suffer, from a medical complaint brought on by working conditions during the 1960s, 70s and 80s. These complaints include deafness, vibrating white finger, or breathing difficulties brought on by long-term working with asbestos materials.

But because these people tend also to be mature, and stoical, members of society, the very persons who do not "throw a sickie" at the drop of a hat, the three-year time bar on raising personal injury actions has adversely affected them more than most.

One case, despite being almost 20 years old, encapsulates the situation. In 1989, a man in Aberdeen eventually visited his GP after being constantly told by his wife that he watched television with the volume turned up too high. He was then referred to an ear, nose and throat (ENT) surgeon who, after consultation and investigation, informed the man he was officially deaf and the condition was most likely caused by working for many years in an over-noisy environment.

However, when the man contacted his trade union about making a personal injury claim, the employer's insurers would not pay up and because, by then, the three-year limit on personal injury pursuits had passed, he was not able to raise an action through the courts.

Extending the limit from three to five years will not help every worker, or former worker, with a current - or future - medical complaint for which compensation could be available. But it should certainly help level the playing field in favour of people who, up to now, are being "timed out" from justice through no fault of their own.

I hope the commission's recommendation forms the basis of a Bill and a change in the law.

• David Short is a partner in Lawford Kidd.

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