When does the limitation period actually start? Practice question I keep getting wrong
Doing the PassTheBar solicitor practice set and this one has been bothering me for two days. Paraphrasing it slightly:
Client had surgery in April 2022. In September 2024 a second doctor tells her the first surgery was done improperly and that is what has been causing her pain since. She comes to you in March 2026 wanting to sue the original surgeon. When does the basic limitation period expire?
Options were April 2024, September 2026, April 2037, and March 2028.
I picked April 2024 because the negligent act was the surgery. The answer key says September 2026 and the explanation talks about discovery. I follow what it is saying but the act happened in 2022 and I do not see how a claim sits around for over two years before the clock even starts.
Am I missing something obvious.
8 replies
Accepted answer
You are missing section 5. The clock does not run from the act, it runs from discovery.
Under the Limitations Act, 2002 the basic period is two years from the day the claim was discovered, and discovery has four parts. She has to know the injury happened, that it was caused by an act or omission, that the act was the defendant's, and that a proceeding would be an appropriate way to seek a remedy. She did not know the surgery caused it until September 2024. So September 2024 plus two.
April 2024 is the trap. That is what you get counting from the act, which is the outcome s.5 exists to stop.
Ok that is clearer than the explanation was. So the surgery date does nothing at all?
Not nothing. It starts the ultimate period. Section 15 gives fifteen years from the act regardless of discovery, so April 2037 in your question. That is the backstop for a claim nobody could reasonably have found out about.
Which is why April 2037 is sitting in the options. It is a real number, just not the one being asked for.
What made discovery stick for me was thinking of it as a fairness rule rather than a timing rule. People should not lose claims they had no way of knowing about. Once it clicked like that I could rebuild the four elements from scratch if I blanked.
Is this from the actual exam or
No, PassTheBar practice set. I would not post an actual question and honestly I would not want to read one either.
Got this one wrong too, picked March 2028 because I thought instructing counsel triggered the appropriate means element. It does not. Do not be me
Update, redid the set this morning and got the other two limitation questions straight away. So the explanation was fine, I just needed someone to put the words in a different order. Thanks all.
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