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When you suffer any kind of personal injury, the last person you probably want to speak to is a solicitor. However, a delay in talking to a solicitor and starting your claim could cost you. This is because, under Scottish law, you only have three years to raise a claim. This is known as timebar or the triennium.

Raising a claim is not as simple as just speaking to a solicitor – a claim must be settled or raised in court before the triennium. This means that your solicitor will need to thoroughly investigate your claim to adhere to this. Going to your solicitor as soon as possible is therefore vital so there is sufficient time to investigate your claim and raise it with the court if need be.

The relevant legislation is the Prescriptions and Limitation (Scotland) Act 1973.  The general rule is set out in section 17 and section 18 of the Act.

Section 17 relates to a personal injury that does not result in death and states that no claim can be brought unless it is commenced within a period of three years after the injury was sustained or when the person became aware. It further states that a personal injury claim can be brought if it is the opinion of court that it would have been reasonably practicable for them in all the circumstances to become aware, that an injury, was sustained which could be attributable to the act or omission of another person in whole or in part. In summary, what this means is that you have three years from the day you are injured or the day you became aware of the injury (e.g. through a diagnosis) to make your claim.

Section 18 relates to a personal injury that does cause death. If such an injury does lead to death, a family has three years from the date of the death to make a claim.

It is possible to extend the limitation period. However, this is not a get out jail free card.  The limitation can only be extended if the Defender agrees to it and there is no certainty that they will!

The legislation does allow the courts to overrule this three-year limitation period.  Under section 19 (A) of the legislation, the Courts have the discretion to over-rule the limitation period. However, you do not want to be in a position where you have to rely on this provision. The court will look at the individual circumstances of your case in exercising its discretion and they will fully consider if it is equitable to do so. Case law suggests the courts are not overly keen at using this discretion.

Although this limitation period applies to most personal injury claims, there are a couple of exceptions. If you have a holiday sickness claims arising from food poisoning on a cruise ship, for example, you only have a period of 2 years to settle a claim or raise it as a court action. Claims arising from accidents abroad and historical abuse also have different rules in respect of limitation periods.

In conclusion, the countdown begins as soon as you become injured or diagnosed so do not delay -talk to Thompsons today about your personal injury claim.

Blog by Nathan McHardy, Trainee Solicitor

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