Limitation cases since Adams v Bracknell Forest Borough Council
Introduction
1. The
purpose of this article is to remind readers of the limitation difficulties
which claimants face as a consequence of the decision in Adams v Bracknell
Forest Borough Council (2005) 1 AC 76, particularly in modest value claims.
2. The
question of whether a claimant has constructive knowledge often arises in
clinical negligence actions where the claimant may well not know that his/her
injury is attributable to the alleged breach of duty until a report is obtained
from an expert.
3. Adams
v Bracknell Forest Borough Council set the new high water mark for defendants on the application
of section 14 of the Limitation Act and, in particular, on the question of
constructive knowledge. The decision in Adams would appear to make it
very difficult for claimants who have sustained an injury of which they are
aware and which is sufficiently serious for them to wish to investigate whether
they have a claim (which by definition it always will be in cases of this sort)
ever to avoid a finding of constructive knowledge.
4. Adams suggested that claimants
would instead have to rely on the court’s discretion to disapply the limitation
period under section 33. However it makes even this difficult in low to medium
value claims. Lord Hoffman approved the proposition that the question of
proportionality is important and that a court should be slow to exercise its
discretion in favour of a claimant in the absence of cogent medical evidence
showing a serious effect on the claimant’s health or enjoyment of life and
employability or where any award was likely to be relatively modest.
5. In Adams the claimant sought damages from his local education authority for failing to
diagnose and treat his dyslexia whilst he was at school. It was accepted that
the claimant did not have actual knowledge of his dyslexia more than 3 years
before he commenced proceedings. However the issue in dispute was whether he
had constructive knowledge of the relevant facts within section 14(3).
6. Lord
Hoffman, who was in the majority, made it clear that whether a claimant has
constructive knowledge is an objective test: what medical or other advice
should a reasonable man with the claimant’s condition have sought? Lord Hoffman
said
“It is true that the plaintiff must
be assumed to be the person who has suffered the injury in question and not
some other person. But … I do not see how his particular character or
intelligence can be relevant.”
7. Lord
Hoffman found the reasoning in Forbes v Wandsworth Health Authority (1997) QB 402 to be persuasive and he felt that the introduction of the
discretion under section 33 had altered the balance. He said that
“… section 14(3) requires one to
assume that a person who is aware that he has suffered a personal injury,
serious enough to be something about which he would go and see a solicitor if
he knew he had a claim, will be sufficiently curious about the causes of the
injury to seek whatever expert advice is appropriate.”
8. Lord
Hoffman said that the normal expectation was that a person suffering from a
significant injury will be curious about its origins. In the absence of that
expectation, there is no reason why the limitation period should not be
prevented from running for an indefinite period until some contrary impulse
leads to the impulse which brings it to an end
9. Their
Lordships, when considering whether the claimant should have discovered that
his literacy problems were the result of dyslexia which could have been treated
at school, held that a claimant with literacy problems could reasonably have
been expected to have sought expert advice years ago.
Cases on constructive knowledge since Adams
10. Following Adams, the question which must be considered is whether a reasonable
person suffering from the claimant’s condition could reasonably be expected to
have sought medical or other advice such that he would have obtained the
requisite knowledge?
11. There
have been no reported decisions since Adams which have applied this test.
12. In Albonetti v Wirral Metropolitan Borough Council, McKinnon J, 10th May
2006 (a sexual abuse case not a clinical negligence action), it was held that
the claimant did not have actual or constructive knowledge that the psychiatric
injury that he sustained was significant in the statutory sense. The relatively
short period of sexual abuse, though unpleasant and, in the long term damaging,
was not of such a degree as in the early 1970s or 1980s would have been
regarded as significant in that sense by a claimant of the claimant’s age,
experience and circumstances. The judge held that there was no tension between
the decision in KR and others v Bryn Allen Community [2003] EWCA Civ 85
and 783 and the decision in Adams. He was bound by KR to apply a
partly subjective test in deciding whether a claimant had constructive
knowledge that an injury was significant.
Case on section 33 since Adams
13. In Kathleen
Smith (Widow and Administratrix of the Estate of George Kenneth Smith,
Deaceased) v Ministry of Defence, Silber J, 18th April 2005 (an
industrial disease case), the judge exercised his discretion pursuant to
section 33 and disapplied the limitation period in a case where the claimant’s
date of knowledge was no later than 1995 and proceedings were not brought until
2004. The facts of the case were unusual and bear analysis. Essentially, the
claimant was suing her husband’s former employers for exposing him to asbestos
causing mesothelioma.
14. In
reaching this decision the judge emphasised the hurdles which claimants making
such an application have to overcome, saying:
“First it is important to appreciate
that significantly, the burden of showing that it is equitable to disallow the
limitation period is a heavy burden and that this rests on the claimant.
Second, I have approached this limitation issue on the basis that it is an
exceptional indulgence to a claimant to disapply the limitation period and that
it should only be granted where equity between the parties demands it. Third I
bear in mind that “as a general rule of thumb, the longer the delay after the
occurrence of matters giving rise to the cause of action, the more likely it is
that the balance of prejudice will swing against disapplication”. Fourth, I
also take into account the fact that “the more cogent the claimant’s case, the
greater the prejudice to the defendant in depriving him of the benefit of the
limitation period”…. Finally “if the date of knowledge test in section 14 is
properly applied so as to provide a claimant with an extension of the period by
reference to it, the weight to be given to his reasons for delay thereafter
should, in the normal circumstances, be limited”.
15. In McGhie
v British Telecommunications Plc [2005] EWCA Civ 48, the Court of Appeal
considered and applied the proportionality test set out in Adams. McGhie was a claim by an employee for a back injury sustained in the course of
his employment. Mr McGhie brought his claim fro damages 2 years after the
expiry of the limitation period. The judge at first instance had exercised his
discretion under section 33 and had disapplied the limitation period. The Court
of Appeal allowed the appeal and found in the defendant’s favour where there
was a two year delay, where the claimant’s case was thin, where there was
accepted evidential prejudice to the Defendant and where the case was of modest
value (no more than £20,000).
16. Lord
Justice May made it clear that a judge would be more likely to exercise his
discretion in favour of a seriously and permanently injured claimant with a
strong claim, saying:
“The question of proportionality is,
in my judgment, in the first place, a proportionality between the size of the
claim and the legal and other costs of running it. The question of
proportionality also has an eye, in my judgment, to the strength of the
claimant’s claim. In my judgment, taking the matters in the round, it would be
a great prejudice to a claimant who was very badly injured and likely to suffer
the consequences of that injury for many years to come if, what would otherwise
be a very large claim, based upon very strong evidence, were to be lost through
a refusal to exercise the discretion under section 33.”
Cara Guthrie
29th September 2006
