County Court claim against organisation for emotional distress? - can this be done?

[Helpme2019]

Hi

Hoping somebody can assist?...

Can a claim be started in County Court for just emotional distress caused to an individual? If it can, what would the time limit be for this?

Thanks in advance!!

[efpom]

Depends - you need to provide "some meat on the bone."

[Helpme2019]

Hi EFPOM

Thanks for your reply.

The organisation is a hospital, but there is no medical negligence involved. The claim would simply be that the hospital staff made an already emotional and distressing situation much worse through lack of thought and compassion.

Thanks

[Helpme2019]

Hi

Just wondering if anybody is able to help with this?

Thanks

[efpom]

Do you assert clinical negligence, psychiatric injury, mistreatment by your employer or something else? Your writing is Delphic!

[Helpme2019]

Hi

Apologies, I thought I had provided enough information.

The Defendant is a hospital that the Claimant visited to give birth to her full-term stillborn baby, which the hospital had just advised her had died in the womb. The Claimant would not be claiming medical/clinical negligence, but just that the hospital staff made an already emotional and distressing situation much worse through lack of thought and compassion. Examples being-

- Certain staff members did not read the notes prior to speaking with the Claimant and so laughed and told her not to be silly when she stated that she did not want to give birth to the baby

- The Claimant was left for hours upon hours with her dead baby without anybody discussing with her what would/could happen next

- There was a 'cold cot' available that the Claimant could have used to slow deterioration of her baby's condition, but the hospital staff did not offer this to the Claimant until many hours later, and only after a family member alerted staff to the fact that the baby was wrapped in a blanket in a hot room and so the colouring of the baby had changed dramatically and there was an odour coming from the baby's mouth.

- The Claimant asked for information about what would/could happen next and was subsequently advised, by one particular member of staff, how her baby would be placed in a bag like a holdall etc...

I presume the above is sufficient information to enable you to assist?

Thanks.

[efpom]

On what date did this happen?

[Helpme2019]

6 years ago this month

[Amethyst]

I'm so sorry for your loss and the lack of care and support offered to you by the hospital staff at an extremely distressing time.

Distress does only seem to apply if there were some form of negligence preceeding it, however it is worth looking into - have you previously made any complaint to the hospital at all about the issues you've raised? Even if you don't raise a claim for emotional distress you should make the hospital aware of the complaint and your concerns about their treatment of bereaved parents - one would hope there have been improvements in the past six years, however it sounds like an apology and a review of their processes might go someway to helping you deal with things.

It

won't be an easy claim to make at all, and it's not something you should put yourself through as a litigant in person, I would get yourself an appointment with a good personal injury solicitor to discuss the case as soon as possible.A chat with someone like Irwin Mitchell or Mills & Reeve, or even Leigh Day, may be a good starting point. It sounds like you are right on the edge of the 6 year limitation period expiring - IF you managed to get an extension of the 3 year limitation period.

Damages for psychiatric injury


Where a professional’s negligence leads not just to distress but to mental illness such as depression or PTSD, general damages for personal injury can be awarded by the court. The claimant will need to provide expert evidence that they have developed a psychiatric injury or illness; this is not required if the claim is for damages for distress.

Claims of this kind have been made, for example in Bennett v Greenland Houchen & Co, Shade v The Compton Partnership and Begum v Neejam Llp, but in all of these cases the claimant faced problems concerning limitation. This is because a claim that includes a claim for damages for personal injury has a three-year limitation period under section 11 of the Limitation Act 1980. This problem is avoided if the claimant can persuade the court to extend the time limit under section 33. Alternatively, where the claim for damages for psychiatric injury can be clearly distinguished from the rest of the claim, the claimant may be able to abandon the personal injury element of their claim and thereby take advantage of the six year limitation period in contract and tort.

[Helpme2019]

Hi AMETHYST

Thank you so much for your response and the information you have given me.

I did make a complaint directly to the hospital, but the response I received was excuses and denial.

From the information you have provided, it seems it may be worth me making a claim for negligence and associated damages (emotional distress). If I could not persuade the court to extend the 3 year time limit for negligence, then I could simply abandon that pat of the claim and pursue the damages only.

I will look at contacting the solicitors you have detailed to see if I can maybe get a little assistance, but, unfortunately, I cannot afford to pay a solicitor to act for me, so I may just have to muddle through myself.

Many thanks again!

[pt2537]

The NHS has well funded well resourced solicitors at their disposal. Locking horns with them in ligation can expose you to an adverse costs order if it all goes wrong. I dont want to sound like im lacking compassion because im not but i wouldnt want you to get sucked into litigation which could land you with a £20k to £30k cost order if the claim fails. That would make an already horrible situation much worst.

Get legal assistance, get someone who specialises on a no win no fee agreement if possible.

[Helpme2019]

Hi PT2537

Thanks for your advice! I am in the process of contacting the solicitors suggested by AMETHYST. At the moment, as I cannot afford to pay a solicitor to act for me, I am enquiring about initial advice, but if one of them does perhaps offer to act on a 'no win no fee' basis, I will of course accept this.

Many thanks.

[Helpme2019]

Hi

I have been doing some further research regarding this and wonder what your thoughts are regarding bringing a claim for 'Intentional infliction of emotional distress'? This seems to be a tort carrying a time limit of 6 years and, although it is a damages claim, research suggests that it can be brought as a claim in its own right.

I am also still considering bringing a claim for negligence and seeking an extension to the time limit under s.33 of the Limitations Act, as I feel I may be able to persuade the court that the degree of prejudice I would suffer in not being able to pursue a claim would far outweigh any prejudice the Defendant may suffer. If I were to issue the claim for negligence, would this be on form N1? Also, what fee would be payable?...Would it just be a fee based upon the amount of compensation sought, or would it be a non-money fee also? Also, how do I request that the court extend the time limit and at what point would I do this?

Whatever claim I decide to pursue, I am going to have to seek a stay of proceedings to allow me the time to complete the pre-action protocol. How do I ask for a stay of proceedings and at what point would I request this?

Sorry for all of the questions, but any assistance would be very much appreciated!

Many thanks

[Helpme2019]

Hi

Just realised...do I need to post this as a new thread for it to be seen by everybody?

Many thanks.

[R0b]

Did you manage to get some initial advice?

Everything has a time limit, some longer than others but the general rule for tort claims is 6 years from the date of when the event happened but for personal injury, it's 3 years.

Arguing an extension of time under s.33 of the Limitation Act is very difficult to achieve success - it is a high bar to get over and since its a niche area of the law, it require a specialist to act on your behalf if you want any chance of success.

In a recent case late 2017, Carroll v Chief Constable of Greater Manchester Police, the Court of Appeal had set out 13 guiding principles when deciding whether to extend time. A court would then apply these principles and determine if you have persuaded them enough to extend time.

42 Section 33(3) of the LA 1980 requires the court, when exercising its discretion under section 33(1), to have regard to all the circumstances of the case but also directs the court to have regard to the five matters specified in subsections 33(3)(a)–(f). There are numerous reported cases in which the court has elaborated on the application of that statutory direction in the context of the particular facts of the case. In many of the cases the court has stated various principles of general application. The general principles may be summarised as follows.

1. Section 33 is not confined to a “residual class of cases”. It is unfettered and requires the judge to look at the matter broadly: Donovan v Gwentoys Ltd[1990] 1 WLR 472, 477e; Horton v Sadler[2007] 1 AC 307, para 9 (approving the Court of Appeal judgments in Firman v Ellis[1978] QB 886); A v Hoare[2008] AC 844, paras 45, 49, 68 and 84; Sayers v Hunters[2013] 1 WLR 1695, para 55.

2. The matters specified in section 33(3) are not intended to place a fetter on the discretion given by section 33(1), as is made plain by the opening words “the court shall have regard to all the circumstances of the case”, but to focus the attention of the court on matters which past experience has shown are likely to call for evaluation in the exercise of the discretion and must be taken into a consideration by the judge: Donovan’s case, pp 477h–478a.

3. The essence of the proper exercise of the judicial discretion under section 33 is that the test is a balance of prejudice and the burden is on the claimant to show that his or her prejudice would outweigh that to the defendant: Donovan’s case, p 477e; Adams v Bracknell Forest Borough Council[2005] 1 AC 76, para 55, approving observations in Robinson v St Helens Metropolitan Borough Council [2003] PIQR P128, paras 32 and 33; McGhie v British Telecommunications plc [2005] EWCA Civ 48 at [45]. Refusing to exercise the discretion in favour of a claimant who brings the claim outside the primary limitation period will necessarily prejudice the claimant, who thereby loses the chance of establishing the claim.

4. The burden on the claimant under section 33 is not necessarily a heavy one. How heavy or easy it is for the claimant to discharge the burden will depend on the facts of the particular case: Sayers’s case, para 55.

5. Furthermore, while the ultimate burden is on a claimant to show that it would be equitable to disapply the statute, the evidential burden of showing that the evidence adduced, or likely to be adduced, by the defendant is, or is likely to be, less cogent because of the delay is on the defendant: Burgin v Sheffield City Council [2005] EWCA Civ 482 at [23]. If relevant or potentially relevant documentation has been destroyed or lost by the defendant irresponsibly, that is a factor which may weigh against the defendant: Hammond v West Lancashire Health Authority [1998] Lloyd’s Rep Med 146.

6. The prospects of a fair trial are important: A v Hoare, para 60. The Limitation Acts are designed to protect defendants from the injustice of having to fight stale claims, especially when any witnesses the defendant might have been able to rely on are not available or have no recollection and there are no documents to assist the court in deciding what was done or not done and why: Donovan’s case, p 479a; Robinson’s case, para 32; and Adams’s case, para 55. It is, therefore, particularly relevant whether, and to what extent, the defendant’s ability to defend the claim has been prejudiced by the lapse of time because of the absence of relevant witnesses and documents: Robinson’s case, para 33; Adams’s case, para 55; and A v Hoare, para 50.

7. Subject to considerations of proportionality (as outlined in para 11 below), the defendant only deserves to have the obligation to pay due damages removed if the passage of time has significantly diminished the opportunity to defend the claim on liability or amount: Cain v Francis[2009] QB 754, para 69.

8. It is the period after the expiry of the limitation period which is referred to in sub-subsections 33(3)(a) and (b) and carries particular weight: Donovan’s case, p 478g. The court may also, however, have regard to the period of delay from the time at which section 14(2) was satisfied until the claim was first notified: Donovan’s case, pp 478h and 479h–480c; Cain’s case, para 74. The disappearance of evidence and the loss of cogency of evidence even before the limitation clock starts to tick is also relevant, although to a lesser degree: Collins v Secretary of State for Business Innovation and Skills [2014] PIQR P19, para 65.

9. The reason for delay is relevant and may affect the balancing exercise. If it has arisen for an excusable reason, it may be fair and just that the action should proceed despite some unfairness to the defendant due to the delay. If, on the other hand, the reasons for the delay or its length are not good ones, that may tip the balance in the other direction: Cain’s case, para 73. I consider that the latter may be better expressed by saying that, if there are no good reasons for the delay or its length, there is nothing to qualify or temper the prejudice which has been caused to the defendant by the effect of the delay on the defendant’s ability to defend the claim.

10. Delay caused by the conduct of the claimant’s advisers rather than by the claimant may be excusable in this context: Corbin v Penfold Metallising Co Ltd [2000] Lloyd’s Rep Med 247.

11. In the context of reasons for delay, it is relevant to consider under subsection 33(3)(a) whether knowledge or information was reasonably suppressed by the claimant which, if not suppressed, would have led to the proceedings being issued earlier, even though the explanation is irrelevant for meeting the objective standard or test in section 14(2) and (3) and so insufficient to prevent the commencement of the limitation period: A v Hoare, paras 44–45 and 70.

12. Proportionality is material to the exercise of the discretion: Robinson’s case, paras 32 and 33; Adams’s case, paras 54–55. In that context, it may be relevant that the claim has only a thin prospect of success (McGhie’s case, para 48), that the claim is modest in financial terms so as to give rise to disproportionate legal costs (Robinson’s case, para 33; Adams’s case, para 55); McGhie’s case, para 48), that the claimant would have a clear case against his or her solicitors (Donovan’s case, p 479f), and, in a personal injury case, the extent and degree of damage to the claimant’s health, enjoyment of life and employability (Robinson’s case, para 33; Adams’s case, para 55).

13. An appeal court will only interfere with the exercise of the judge’s discretion under section 33, as in other cases of judicial discretion, where the judge has made an error of principle, such as taking into account irrelevant matters or failing to take into account relevant matters, or has made a decision which is wrong, that is to say the judge has exceeded the generous ambit within which a reasonable disagreement is possible: KR v Bryn Alyn Community (Holdings) Ltd[2003] QB 1441, para 69; Burgin’s case, para 16.