Dear Claudine,

I was involved in an accident in October 2007, and I injured my left arm and shoulder. My employers gave me time off work to attend medical appointments and they paid all my medical expenses. At the time I did not want to take a claim against them. I believed that I had not suffered a serious injury and that I had made a full recovery. I have been experiencing pains in my left shoulder for the last two months and my GP referred me to a Consultant. The Consultant told me that the injury to my shoulder is significant and I will require an operation. He also told me that there is no guarantee that I will make a full recovery. I work in a factory and my job is very physical. I have been told that I am outside the time limit for taking a claim against my employers.

Can you please advise me.

Thanks

Peter

Dear Peter,

Thank you very much for your letter. Generally a person who suffers personal injuries has only two years from the date of the accident within which to take a claim for personal injuries. Section 7 of the Civil Liability Act 2004, came into force on the 31st of March 2005 and provided a two year time limit for a claimant to bring a personal injuries action. As your accident occurred in October 2007, your claim was statute barred in October 2009. This means that you are prohibited from brining a personal injuries action. I would draw your attention, however, to Section 2 (Amendments) Act 1991, which specifically deals with “dates of knowledge”. The decision regarding the question of, “knowledge” was addressed in a Supreme Court Judgment given in 2003. The Judgment provides that in order for the statute to run, a claimant must know enough facts, “as would be capable of, at least, upon further elaboration, establishing a cause of action even if the claimant had no idea that those facts of which he or she had knowledge did in fact constitute a cause of action as that particular knowledge was irrelevant under the Acts”. This knowledge which a claimant must have, is the knowledge that they have been injured, and that the injury which they have suffered was significant. They must also know that the injury was attributable, “in whole or in part to the act or omission which is alleged to constitute negligence”. In your particular case, you knew that you had suffered an injury in October 2007, however, your injury appears to have become significant in the last two months when your consultant informed you that you would require an operative procedure on your left shoulder. If this injury only materialised in the last two months and medical evidence establishes that it has occurred as a direct result of your accident, then in such circumstances you may be able to rely upon the 1991 Amendment Act in relation to your requisite knowledge. As time is of the essence, you should immediately submit your claim to the Injuries Board together with a detailed medical report in relation to your injuries. There is an application fee of €50.00 payable to the Injuries Board to process your Application. They will write to you confirming receipt of your completed Application and they will then correspond with your employers. If your employer consents to the Board making an Assessment of your claim for personal injuries, and you have no objection, then they will make an assessment of what compensation is due to you. The Board will also calculate the amount of out of pocket expenses ie: medical bills etc. due to you, however, if these have all been discharged by your employer, you will not be allowed to claim these. If the Board deem it inappropriate to assess your claim or if your employers reject the Assessment, then they will issue you with an Authority to proceed with your claim to the Court. At this stage, due to the complexity of the issues raised and the fact that there is a statute issue, it would be prudent for you to consult with a Solicitor to act on your behalf.

I hope that the above is helpful to you.

Claudine