There are a number of legal defences to a
negligence action, including,
Limitation
In general an adult has three years from
the date of the alleged negligence to bring
a claim. However, there are exceptions to
this and the court has discretion to extend
the period. The limitation period does not
apply to children (here the three years will
start on the 18th birthday) or to mental
patients (someone unable to manage his
affairs). So, in cases where children are
severely brain damaged at birth, there is no
time limit to the bringing of a claim.
Consent
A person who agrees to run the risk of
harm will not be able to bring proceedings
relating to damage caused by their taking
that risk. However, the patient’s consent to
an operation will not mean that s/he has
agreed to run a risk and this defence will
not apply.
This defence is unlikely to be used in a
clinical negligence claim,this is mis-understood
by medical staff who may be under the
impression that a consent form provides a
defence to a negligence action.
Contributory negligence
A claimant who was himself negligent and
so contributed to his injuries will have his
damages reduced.
For example.
A patient entitled to damages after a
negligent orthopaedic operation to the leg
may have his damages reduced if he added to
the damage by ignoring advice against
weight-bearing too early.
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