The troublesome Scottish law on prescription of personal injury cases looks set to loosen, following recent court decisions and a report from the Scottish Law Commission.
The current position is that such claims time bar if a court action is not raised within three years of the accident, or the date upon which the pursuer became aware, or should reasonably practicably have become aware, that they were suffering from actionable injuries for which the Defender was liable. There is scope for the court to override the time bar on equitable grounds. However, Pursuers' solicitors still take the view that the three year limit is too short. Likewise, the reasonable practicability test does not consider whether a pursuer acted reasonably in failing to take a step which would have made them aware of the relevant issues, and has therefore been criticised as too harsh.
The time bar has recently been in the news, north and south of the border, following a number of cases considering historic abuse. In one recent Scottish decision, Lord McEwan allowed a 43-year-old man to proceed against Glasgow City Council in respect of sexual abuse that he claims to have suffered whilst in care in a children's home. The pursuer claims that he blocked out memories of his abuse for two decades, but that he developed post-traumatic stress disorder following allegations relating to the home surfacing in 2001.
Solicitors representing the council disputed the factual case presented by the pursuer but also argued that the claims were time-barred. Lord McEwan held that the pursuer was not claiming in respect of the assaults and that the alleged psychological harm was a distinct injury for which a claim was not time barred.
In his judgement Lord McEwan noted the similar ruling of the House of Lords in a recent English case. The Law Lords ruled that a woman whose life was ruined following an attempted rape by Iorworth Hoare, who later won £7m in the National Lottery, has the right to pursue a damages claim against him, even though the time limit had run out. Even though Lord McEwan did not require to consider whether to override the time bar, it was clear that he envisaged use of the override widening following the decision in the Hoare case.
Changes are afoot even as the case law is developing, though. The Scottish Law Commission has issued a Report on Limitation and Prescribed Claims. The most headline grabbing recommendation was that the limitation period be extended to five years, in line with that for other types of damages. Amongst their other proposals was that the reasonable practicability test be replaced with that of when a person ceased to be reasonably unaware of their right of action. Finally, the Commission was recommended that the line of authority that Lord McEwan employed, that separate injuries from the same incident could lead to separate trienniums, be overruled, with a single triennium for a single incident.
There is bound to be a degree of uncertainty as to the limits of the Commission's proposals, particularly in relation to the new test, pending judicial consideration. However, it does seem that the law is developing in Pursuers' favour.
