With three years to make an injury claim, there's no rush right?

Woman getting advice from solicitor

I've been injured in an accident and heard you have three years to claim compensation – so there is no rush for me to seek legal advice, right?

WRONG.

In Scotland, the Prescription and Limitation (Scotland) Act 1973 dictates that an individual has a period of three years from the date of the accident to either settle their claim with the responsible party, or have a Court action raised on their behalf to protect their right to claim.

Time barred

If you do not manage to negotiate a settlement, or have a Court action raised within the, most commonly, three year time limit, your case will become what is known as 'time barred' and you will be unable to claim any compensation for the injuries and losses you have suffered.

Depending on the accident and where it happened, time limits can also change. For example, if you have been injured abroad or whilst travelling on an airplane, the time limit may not even be two years.

Memories fade over time

Practical difficulties can also arise when individuals allow a large period of time to pass before seeking legal advice.

Witness evidence is often crucial in personal injury cases. As time passes, inevitably, individual's memories or recollections of an accident fade. Witnesses can also move address, leave their jobs, become ill, or even pass away.

Therefore, gathering witness evidence as soon as possible following an accident is a vital part of ensuring that solicitors are able to present the best evidence available to secure fair compensation.

Time to identify responsible party

Identifying the correct defender, or the responsible party, is also a vital part of any personal injury claim. With the passage of time, this can often become problematic.

For example, if a client advises his solicitor, two and half years after a road traffic accident, "David from down the road, driving his old car" was the responsible party, enquiries will need to be made to find "David" and, importantly, identify the insurers of the vehicle responsible at the time of the accident.

If "David" has moved house, and the client does not know his new address, and/or has sold his car and the client cannot remember the registration of the car, it is unlikely that the solicitor will have sufficient time to find the information needed to enter into negotiations with the correct vehicle insurers. It is very unlikely they will be able to obtain sufficient information to allow them to confidently predict that:

  1. the correct driver and vehicle involved in the incident have been identified and
  2. that the case is likely to be successful.

In cases whereby individuals are injured at work, or the responsible party is a company, correctly identifying the company responsible for the accident is often far from straight forward - especially because companies can change their names over time.

Risk that solicitors will not take on the case

There is a risk to an injured victim that if they delay seeking legal advice until near the end of the time period to make a claim, then a solicitor may be unwilling to help them. This is because they may not have enough time to correctly identify the responsible company, assess the strength of the case, and thereafter raise a Court action within the remaining time frame.

If the responsible company is no longer trading, or been dissolved, further legal procedures are required before a Court action is raised. Again, if there is insufficient time for these procedures to be carried out before the time limit ends, it is more than likely that the solicitor will be unable to take on such a case.

If the case is raised in court against the incorrect person or company, the case will probably be dismissed and the injured party will need to pay for the expenses of bringing the case to court. It is therefore crucial that the solicitor has enough time to properly identify who is responsible for the accident.

People are often unaware of, or get caught out, by the strict limits of when injury claims must be brought. However, for reasons highlighted above, it is extremely important that people seek specialist legal advice well in advance of the time limit deadline to protect their legal right to compensation.

For more information about other common misconceptions about personal injury compensation, see our blog The 6 myths about personal injury claims.