Karen Shaw v Brigid Maguire

Where a person injured by alleged negligence dies after the primary limitation period has expired, the personal representative may still bring a Fatal Accidents Act claim and seek to disapply the limitation period under section 33 of the Limitation Act 1980. There is no absolute bar in such circumstances.

The section 33 discretion is unfettered. The court must balance prejudice, considering all the circumstances and the statutory factors. Delay caused by solicitors may be excusable where the claimant acted reasonably. A fair trial remains central, and the defendant must show how delay has impaired the defence. The availability of contemporaneous records, samples and expert evidence may substantially reduce that prejudice.

The claimant, as widow, executrix and dependant, brought clinical negligence and fatal accident claims arising from the defendant pathologist’s 2007 report of a melanoma sample as benign. The deceased died in January 2014. Proceedings against the defendant were issued in August 2022 after earlier solicitors failed to pursue the claim.

The court determined whether the claims were time-barred and, if so, whether the limitation periods should be disapplied under section 33 of the Limitation Act 1980. The central issues were the date of knowledge, the effect of sections 11 and 12, and the balance of prejudice.

1. The claim was allowed to proceed. The court directed that sections 11 and 12 of the Limitation Act 1980 should not apply.
2. Section 12(1), read with section 33(2), does not create an absolute bar where an injured person with capacity dies three years or more after the accident or date of knowledge without commencing proceedings. The personal representative may commence the Fatal Accidents Act claim and apply under section 33. The contrary commentary in Kemp & Kemp was not accepted. The approach was consistent with MMG3 v Dunn [2019] EWHC 882 (QB).
3. The deceased and claimant knew in November 2009 that an injury was attributable to the defendant, but did not then reasonably regard it as sufficiently serious to justify proceedings. Their date of knowledge under section 14 was June 2013, when the condition became serious and terminal. The deceased therefore retained his cause of action at death.
4. The section 33 discretion requires a broad assessment of all the circumstances. The statutory factors guide the inquiry but do not fetter it. The essential question is whether the claimant’s prejudice outweighs the defendant’s prejudice. The claimant bears that burden, while the defendant bears an evidential burden to show that delay has weakened the defence. The principles in Carroll v Chief Constable of Greater Manchester [2017] EWCA Civ 199 were adopted.
5. The delay was attributable to the former solicitors, not the claimant. The claimant acted reasonably after learning of the seriousness of the condition. The histology sample and report remained available, and liability and causation could be addressed through expert evidence. The defendant’s loss of recollection did not demonstrate material forensic prejudice. A fair trial remained possible, and the claimant’s prejudice substantially outweighed that to the defendant.