2nd Nov 2014

What time limit will apply in my injury case?

The time limits for commencing personal injury claims through our civil courts differs from applications made to the Criminal Injuries Compensation Authority, despite the fact that often the same negligence may give rise to two claims being persued under either, or both justice systems.  Of course you cannot recover compensation twice for the same incident, but if say the shorter time limit in a CICA application had been missed, a civil claim could still proceed.

Generally speaking for adult claimants, limitation will expire three years from the date of the incident, or three years from the date of knowledge that the incident has caused the injuries.  If you were a child at the time of the abuse, limitation is not triggered until your 18th birthday. If you are a victim of historical sexual abuse, then limitation may well have expired many years ago.  This means that either a limitation standstill, or moratorium, must be agreed with your opponents.  Alternatively, a claim form, or in legal speak, `proceedings’, must be issued at court to protect this date.

Often victims of sexual abuse take years to come to terms with what has happened to them.  If they were a child at the time of their abuse, this may have caused severe and disabling psychological injuries.  Those injuries may have prevented them from coming forward to the police, or seeking legal advice on their potential claim.  In those cases, we can often overcome the limitation hurdle as we can rely on the court's discretion to bring a claim out of time.  There are many factors a court will take into account in deciding if an historic case can proceed, such as the prejudice to the defendant in allowing the claim to go forward.  If key witnesses have died, or there is lack of any evidence surrounding the incident, these are factors which will go against the claimant.  Each case must be assessed on its own merits and it is well worth seeking expert legal advice on the issue.

The way in which the court views time limits in abuse cases was also radically changed by the House of Lords in 2008 following the decision in Hoare.  Previously victims of rape and sexual abuse could argue that they had suffered an intentional tort, or wrongdoing, such as assault and battery.  Prior to 2008, intentional torts relied on a 6 year limitation period from the date of the incident.  However, the court had no discretion to extend the 6 year period.  The claimant had to ensure that proceedings were commenced with this timeframe.  Following Hoare, the court effectively removed the 6 year time limit and now any cases relying on an intentional tort can utilise the same three year time limit, plus the court's discretion.

If you are an accident victim and say have tripped over a defective pavement, suffered an accident at work, or been involved in a road traffic accident, the legal position is much clearer.  You will be expected to commence proceedings within three years of the date of the accident.  The courts are much stricter with accident claims because there is rarely any doubt that the claimant knows that the injury was caused by the accident. However, in cases involving sexual assault, victims may supress their memories of the sexual abuse which means they cannot be said to know the assault caused their injuries.  In turn, this means their date of knowledge does not commence.  Only when they belated appreciate that the sexual assault caused their injuries does date of knowledge commence and the limitation clock starts to run.  This is not the same for physical abuse where the courts take the view that bruising and broken bones are there to be seen.  Unless the physical abuse causes psychological injury, discretion is far less likely to be granted.

The time limits for a CICA claim are different.  If you are a victim of a crime of violence, then a two year time limit applies from the date of the incident, or two years from your 18th birthday if you were a child at the time.  If the perpetrator was uninsured or has no money, such as`the man in the street’, or perhaps a relative, then often the CICA is the only way in which compensation can be achieved.  If the man in the street who has sexually or physically assaulted you is wealthy, then a civil claim can be commenced.  This is particularly so if a criminal conviction has been obtained as this helps evidentially.    

If you are sexually abused by a perpetrator who is employed, or is in a position of trust say within an organisation such as the Scouts or Church, the claim should be brought against that persons `employer’ as they are likely to be insured for the claim.  The CICA claim can be made at the same time to protect a victims position, but the CICA must be notified of the civil claim as the victim should not be compensated by both sources.  If a victim has received a CICA award and then successfully pursues a civil claim, the CICA should be re-paid.

If you are a victim of sexual abuse and think you have a CICA claim but are beyond the two year time limit, discretion can be sought to bring the application out of time. In exceptional circumstances the CICA may extend this time limit but only where:

• the circumstances of your injury meant that the CICA could not reasonably have expected you to apply within a two year time limit; and
• the evidence you supply in support of the application means the CICA can make a decision without further extensive enquiries.

In deciding whether there are exceptional reasons for you not to have applied earlier the CICA will consider if:

• there is medical or psychiatric evidence available which shows that it was not possible for you to have applied earlier; and
• there is clear evidence available that there was a crime of violence and that you were the victim. The CICA will make basic enquiries of the Police, but you will need to be able to provide evidence that you were a victim of a crime of violence and that you suffered an injury as a result.

It is probable that you will need expert legal advice in this scenario as the Authority are unlikely to allow your application to proceed.  We can help you obtain the necessary medical evidence to account for your delay.  If you were a child at the time of the sexual abuse and the abuse was not reported to the police, the CICA can allow you two years to make your application from the time the matter was eventually reported to the police.  In this case, sexual abuse that may have occurred many years ago, can then be subject to a criminal investigation.  Often with perpetrators of sexual abuse, there may be numerous victims over the years.  The police should keep a record of all allegations made and this can result in the police gaining a conviction long after the initial events, as other victims have come forward in the meantime.

If you or a family member would like expert advice on a free, no obligation basis, please contact Sam on 01392 345333 or email her direct on sam@robsonshaw.uk

Sam is a specialist injury solicitor and has been helping victims of sexual abuse gain compensation for the past 14 years.  She has been a partner at two legal firms and now operates a niche sexual abuse firm dedicated to helping those affected by sexual abuse.