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You are in: Home Page | Personal Injury | Medical Negligence Claims | Clinical Negligence Articles and Clinical Negligence Factsheets | The impact of the ‘Lottery Rapist’ case on Limitation in Clinical Negligence Claims

August 2008

The impact of the ‘Lottery Rapist’ case on Limitation in Clinical Negligence Claims

Iorworth Hoare - The Lottery Rapist

Background

The case which attracted a great deal of interest in January 2008 was that of Iorworth Hoare, otherwise known as the ‘Lottery Rapist.’ Iorworth Hoare was jailed for life in 1989 for the attempted rape of a 59 year old teacher. Whilst on day release in 2004, he purchased a single lottery ticket which tuned out to be a winning ticket worth £7 million.

The Claimant in this case, who has been referred to as Mrs A for confidentiality reasons, had not previously brought a case against Iorworth Hoare for damages for personal injury. The only compensation she received was £5,000 from the Criminal Injuries Compensation Scheme (CICA), which is a government body set up to compensate victims of crimes. The compensation awarded by the CICA would be a lot less than an award made by the courts to be paid by her attacker.

After it was revealed that Iorwoth Hoare had won this substantial amount on the lottery, Mrs A decided to try sue him for her injuries suffered in 1989, i.e. the assault she suffered during the attempted rape, and psychiatric injury. However, the law prevented Mrs A from seeking damages from Iorworth Hoare because she was legally out of time.

History of Limitation

Limitation was first introduced by the Limitation Act 1623, which imposed a limitation period of six years for simple contract and civil matters. Since this act, it has been recognised as a matter of policy that there should be finality and certainty in litigation. The Law Reform (Limitation of Actions) Act 1954 then reduced the limitation period for personal injury matters to three years.

The Limitation Act 1963 introduced the concept of the ‘date of knowledge’ which is explained in more detail below. This basically means that the time limit starts from the date the claimant has knowledge, or should have had knowledge that the injury was caused by the actions of others.

Finally, the Limitation Act 1980 consolidated all limitation legislation and now contains the code for limitation in all personal injury claims.

What is Limitation?

Limitation is the time scale inside which a claimant can issue court proceedings for breaches of action, and is governed by the Limitation Act 1980. In personal injury claims and clinical negligence claims the limitation starts to run from when the Claimant had knowledge, or ought reasonably to have known of the injury, as stated in section 11 of the Limitation Act 1980.

Time Limits

for adults

In a personal injury or clinical negligence claim, a Claimant will have three years from the date of knowledge to issue proceedings under the Limitation Act 1980. Whilst this period is set at 3 years, there is discretion for the courts to extend this if it is just and equitable to do so.

However, if the action is against an individual for a civil action, which includes intentional assaults (also known as a ‘tort’), the Claimant will have 6 years, which was previously non- extendable, from the date the action accrues.

For personal injury compensation claims being dealt with by the Criminal Injuries Compensation Authority (CICA), such as attacks or assaults, a strict 2 year deadline applies. Mrs A was able to receive compensation under the CICA scheme because her claim was made within the two years period following her assault.

Time limits for minors

Where the claimant is under 18 years old, or is a patient as defined by the Mental Health Act 1983, special rules apply in order to protect the claimant’s best interest. If the claimant is a minor, he/she will have three years from his 18th birthday to issue proceedings for a personal injury or clinical negligence claim, which means in effect they will have until their 21st birthday. For patients, the time limit will run from the date they were discharged as a patient.

What is the ‘date of knowledge’?

Time starts to run from the ‘date of knowledge,’ so this is an important date. The claimant is said to have knowledge when he is aware that he has suffered a significant injury. The claimant must also be aware that the injury was caused by the negligence of the other party, and must also be able to identify the defendant.

Significant injury

An injury is classed as significant if it is considered to be sufficiently serious to justify a person taking action against the defendant.

In clinical negligence claims, limitation will begin to run from the date he/she was aware that their injury was caused by the negligent act or omission of the doctor. For example, a patient may attend her GP practice complaining of various symptoms, and her GP may take no action. If, in two years time she finds out she is in fact suffering from cancer which should have been diagnosed two years ago, the patient will only have knowledge when she is diagnosed with the cancer, which would be the significant injury.

Why take action 19 years after the assault?

Mrs A decided to take her claim forward in order to fight for justice for herself and others who would be time barred from taking action in the future.

Barriers to Mrs A’s claim

Prior to this case, a claim for damages for an intentional assault had to be brought within a six year limitation period. As she was attacked in 1989, and was therefore aware of her injuries at this time, action would have needed to have been taken prior to 1995.

Mrs A had previously tried to take action against Iorworth Hoare in December 2004 but was time barred from doing so following the 1993 decision in the case of Stubbings v Webb.

Stubbings v Webb

In this case the courts decided that intentional acts (a tort) did not constitute a personal injury for the purposes of the Limitation Act.

The result of this was that the six year rule would still apply for victims of intentional torts. At first sight this may seem more favourable than the limitation period of three years for personal injury claims, whereas this was actually more restrictive because time runs from the assault, and there is no flexibility of extension for a later date of knowledge. Mrs A knew who her attacker was, but also knew it was not worthwhile, because until he won the lottery he had no money to pay any compensation a court might award her.

So the position after this case was that victims of abuse would be unable to sue their abusers after the 6 year period had expired. Few abusers would be worth suing financially, and it is therefore unlikely that this caused many people problems.

A decision for the courts

The question for the courts was whether Mrs A was time barred from issuing proceedings against the defendant by the Limitation Act 1980. As stated above, the general rule for a tort is that a claimant has 6 years from the date the action accrued to issue proceedings. As Mrs A was trying to commence proceedings well after the expiry of the 6 years period, she was barred from taking action against the defendant.

However, the rules are different for actions for negligence or breach of duty which results in a personal injury. In these such cases, the claimant will have three years from the date the act occurred or from the date of knowledge to issue proceedings. The main difference between the two different limitation periods is that a judge has discretion to extend the three year limitation period for personal injury claims if it is equitable to do so.

The question for the judge was what category did Mrs A fall into? If the action was to be classed as a tort, it would be subject to the 6 year rule, which would give the judge no discretion to extend the period and allow her to claim. However, if the act was to be a personal injury, it would be subject to the three year rule, and give the judge discretion to extend this if he felt it was just to do so.

Victory for Mrs A

After lengthy judgements given by the House of Lords, it was decided that all claims seeking damages for personal injury will now be subject to the same statutory provisions. The implications of this are that claims for intentional torts will no longer be subject to the strict time limit of six years, and instead will be subject to the three year extendable time limit as used for personal injury claims.

The benefit of this is that the court will now have discretion to disapply the primary limitation period where it would be ‘equitable’ to do so. In deciding whether to disapply this limitation period, the Court will take into account the length and reasons for the delay, the evidence available, and also the conduct of both parties concerned.

In this case, the court recognised that victims of sexual assaults would be unlikely to want to take action within a short period following the assault due to the fact they may be feeling humiliated, shameful and also fearful that their stories may not be believed. Significant weight was given to these factors and the Court felt that they would allow the Court to extend the time period on the basis of it is being fair to the claimant.

The Courts also felt that claimants who suffer psychological injury from assaults may not realise they are suffering from this until after the limitation period for bringing a claim. Furthermore, victims of sexual assaults may be slow to come forward through fear of being judged, or through fear.

The real importance of this decision was for the thousands of victims of historic child abuse, where claimants may be time barred from suing the defendants. However, the decision is also likely to have an impact on areas of personal injury and clinical negligence law.

The impact of this decision on future claims

Abuse Claims

The decision in A v Hoare will allow victims of intentional torts, where the limitation period has expired, to apply to the Court to ask them to extend the limitation period, which if granted, will enable them to sue their abuser. The victim will not have an automatic right to be able to sue their abuser after the time limit has passed. Instead, the Court must be convinced that it is fair and equitable to extend the period looking at all the circumstances.

Clinical Negligence Claims

Will this decision have an impact on clinical negligence claims, given the limitation period is three years and can be extended in certain circumstances with the discretion of the court?

In clinical negligence claims, the rules concerning when a claimant has knowledge of his/her injuries will not change as a result of the decision in A v Hoare [2008] UKHL 6. The date of knowledge will still run from when the claimant was aware of his/her injuries, and suspected that it could be due to the fault of a medical practitioner.

As before, the time period may be extended if the judge thinks it is fair to do so in all the circumstances of the case. Although the courts have this element of discretion, it is usually exercised with caution so as not to prejudice the medical professionals involved.

One way in which the decision in A v Hoare [2008] UKHL 6 may have an effect on clinical negligence claims is assaults on patients by medical practitioners, as prior to this case the limitation for an assault was 6 years. For example, if a doctor acts against the wishes of a patient and the courts decide this is an assault, they will have discretion to extend the limitation period. An example of an assault on a patient may be where a doctor gives a patient who is a Jehovah’s witness a blood transfusion against his wishes. If there is no consent, this could be classed as an assault.

Summary

Prior to A v Hoare [2008] UKHL 6, claimants wanting to bring a civil action against the defendant after the six year limitation period were time barred from doing so. The facts of this case are unique; firstly, that an abuser goes on to win £7million on the lottery, and secondly, that his victim should want to sue him 19 years after the assault. Perhaps the most distinctive element of this case is the outcome; Mrs A has successfully challenged the law relating to limitation which will have an affect on other victims wanting to take action, and also on limitation generally.

In clinical negligence claims, whilst the date of knowledge has not been affected by the decision, it is likely that the courts will focus their attention on whether it is fair to waive the limitation period. Patients who have been assaulted by medical practitioners may benefit from this decision, and it will be interesting to see how many people decide to take action now the law has changed.