Timebar
The Three Year Rule
Timebar is a trap for the unwary. Many people do not know that they only have a limited period following an accident to make a claim for a personal injury. The Prescription and Limitation (Scotland) Act 1973 provides that, generally speaking, after an accident, you only have three years to make your claim or it will become ‘timebarred’ and you will not be able to seek compensation. So if you do have an accident and suffer an injury, you should contact your Union as soon as possible to discuss making a claim.
Continuing Exposure and Industrial Disease
There are some general exceptions to the three year rule. Not all personal injury claims arise out of a simple accident such as a person breaking an arm or being knocked over by a vehicle. Some claims can relate to continuing problems and this type of injury is called an industrial disease. Industrial diseases include issues such as Hand Arm Vibration Syndrome (formerly known as Vibration White Finger), Asbestosis, Pleural Plaques (scarring to the lung through exposure to asbestos) and hearing loss from prolonged exposure to loud noise.
If it is the case you are the victim of such exposure, you have either (a) three years from the date you knew or ought reasonably to have known that the exposure was causing you harm or (b) three years from the date you were last exposed, within which to make a claim.
These types of case are more difficult to progress than a simple one off accident such as fall which results in a back injury. This is because it is necessary to demonstrate that your employer knew, or should have known, that such exposure would most likely cause you harm. It must be demonstrated that the injury you have sustained is attributable to some act or omission on the part of your employer. If you have been diagnosed with an industrial disease, please contact your union as quickly as possible to ensure that you do not miss out on any compensation which may be available.
Mental Capacity
Another exception to the three year rule is where a person suffers from a disability and does not have full mental capacity. In such circumstances, the entire period for which they are suffering from that disability is disregarded and the three year period runs from the date they regain capacity. So for example if a person had an accident on 1 February 2000, normally the timebar would be 31 January 2003. If however they suffered from unsoundness of mind for a year, the timebar would be extended for a further year to 31 January 2004. Courts have the power in exceptional circumstances to allow the normal time limit to be overridden. This can only be done if it appears fair to the Court to allow the court action to proceed. Traditionally the Scottish Courts have been slow to allow cases to proceed when commenced outwith the three year period.
Practical Tips
It is always better to seek the advice of a solicitor as early as possible. It can often be the case your solicitor will have to investigate your claim before being able to raise a court action and it is therefore much better to give you and your solicitor as long as possible to undertake proper investigations. Commencement of the action is when the Court proceedings are actually served, and so formal Court documents require to be prepared by your lawyer in advance. This can take some time, and so if you leave it to the last minute then it may not be possible to pursue your claim.
Legal Fees
Lindsays are members of the Compensate Scheme. This allows us to instruct expert medical report and incur court costs without requiring payment from our clients. It also provides protection to our clients against any liability to pay the other side’s legal expenses should their case be unsuccessful. Solicitor fees and outlays will only be paid where the case is successful.
If you wish to discuss a recent injury or any of the issues raised in this article please contact a member of our team.
