If I had to pick one legislative provision which has resulted in more gross unfairness than any other, over the period of my career, its a ‘no-brainer:’ section 47A of the Limitation Act 1935.
Section 47A in the context I have seen it most regularly, set a time limit for claims to be made against public hospitals, to a fixed period of 6 years (at most: it actually provides a 12 month limit, which can be extended up to this 6 limit). When I say ‘fixed’ I mean fixed! No matter how unfair such a time limit is, it cannot be extended…
The most unfair application of this time limit I have seen arises in relation to obstetric negligence claims. Section 47A means that any claim relating to negligence surrounding a child’s birth, must be brought before the child’s 6th birthday. If not, the child’s potential right to claim is lost forever.. This is particularly unfair as it is commonly only around 6 years of age that parents will be told the likely long term outlook for their child, they may have been reassured prior to this point, on the promise of hoped for improvement. Further, if the child’s family situation is unstable and no-one brings claim on their part, their claim is still lost, even though it is absurd to hold them responsible for a lack of action on the part of such parents etc..
Section 47A was repealed by the Limitation Act 2005 and so does not apply to any child born from November 2005 onwards.
In 2 test cases (Burns v Min for Health and Harrall v Min for Health: I argued the latter) heard by the Court in Nov/Dec 11, it was argued that when the 6 year time limit set by section 47A had not expired at the time the "new’ Act came into force, such ‘new’ Act’s provisions allowing extensions of time, when Justice required it, should be permitted to apply, in scenarios such as I have described above.
Sadly, in such cases the Court has made clear that the 2005 legislation does only remove section 47A’s application for children born after November 2005… both children in the Burns and Harrall cases cannot pursue claim against the hospital, no matter how negligent their care + [most importantly], no matter how good the reasons for their not taking action earlier…..