- Head of Medical Negligence
The death of a loved one will always be an upsetting event. When it occurs after or as a consequence of a sudden personal injury or unexpected medical negligence, the outcome can be devastating both emotionally and often financially. Where a claim may be made, it is essential to consider whether the death is linked to the injury and what the time limit for any such claim will be.
The time limits which the law in Scotland applies to a deceased’s legal representative (executor) and to relatives who are interested in recovering damages are therefore very important to ensure the right to make a claim is not lost.
The Prescription and Limitation (Scotland) Act 1973 provides the time limits within which an individual or a loved one must raise a court action for damages. Sections 17 and 18 of the Act provide the general principles that no action can be brought unless it is commenced within three years of the date on which: (a) the injury was sustained; (b) the individual became aware, or in the opinion of the court it would have been reasonably practicable for him to become aware, that an injury was sustained; or (c) the relative’s date of death.
The general principles therefore make it clear that where an act or omission results in or is linked to a death, loved ones have three years from the date of death within which to raise a court action for damages. The “reasonably practicable” extension in (b) above also applies to allow a date later than the date of death if the relevant factors are established.
However, when the death is unconnected to the negligence the three year deadline continues to run from the date of injury or negligence in the same way it would have had the person not died; the only difference being that it is an executor who is making the claim for the deceased pain and suffering (known as transmissible solatium).
The relevant authority for this important deadline is the 2004 case of Mackie’s Executrix v AB 2000 (2004 S.C. 334) in which Mackie raised an action on X’s behalf on 16 March 2001 because of an accident X had sustained on 29 November 1996. X died on 16 March 1998 of causes unrelated to the accident. Mackie argued that as she only came into being as executrix dative after X’s death, her “knowledge” of the matters had to post-date the death of X and as the action was raised within three years of the acquiring such knowledge, it should accordingly be allowed to proceed.
The Inner House of the Court of Session held, refusing the appeal, that, in general, an executor was regarded as the same person as the deceased and, for the purposes of relevant time limits, that was how they should be treated if and when they came to raise an action following the death of an injured person.
It is therefore essential to determine at the earliest possible stage whether the potential claim can be linked to the death or not in order to ensure the most appropriate time limit is worked towards.