PIBULJ Articles

LIMITATION PERIODS – TWO RECENT CASES

For a personal injury action, the limitation period starts to run at either the date the cause of action accrued, or the date of knowledge of the claimant (s. 12 Limitation Act 1980). The date of knowledge is defined by s. 14(1) as the date the claimant knew all of the following:

• That the injury in question was significant;

• That the injury was attributable to the breach of duty of the defendant;

• The identity of the defendant, including any additional defendants.

An injury is significant if the person who suffered it would reasonably have considered it to justify issuing proceedings against a defendant who would not dispute liability or causation (s. 14(2)).

The Court of Appeal has recently looked at these criteria in (1) Catholic Care (Diocese of Leeds) and (2) Home Office v. Young [2006] EWCA Civ 1534 and Kew v. Bettamix [2006] EWCA Civ 1535.

In the Catholic Care case, the Court of Appeal looked at the criteria for deciding when an injury was known to be significant. The claimant’s claim was based on allegations of abuse while a teenager at the two defendants’ institutions. He had suffered post-traumatic stress disorder in the three following years, but then suppressed the memories. A chance meeting with one of his alleged abusers brought the memories back some years later, but he did not bring proceedings until more than four years after that, when he was involved with a police investigation.

The Court of Appeal held that the s. 14(2) criteria are objective: what would a reasonable person have considered to justify issuing proceedings, in the claimant’s circumstances? In this case, the injuries themselves could inhibit a reasonable person from issuing proceedings. The court had to decide the question – one of fact – by balancing the seriousness of the injuries with the inhibiting factor of them. The more serious the injuries, the less likely for the inhibitory factors to justify a refusal to issue proceedings. Further, given the court’s s. 33 discretion to extend the limitation period, there was no need to interpret s. 14 strictly in favour of claimants.

In this case, the claimant knew he had suffered serious injuries in the three years following his abuse, but his suppression of the memories justified a finding that a reasonable person would not have considered them significant. However, after his chance meeting with an alleged abuser, the claimant reasonably would have known that he was suffering serious injuries as a result of the defendants’ alleged breaches of duty. Applying the objective test, the claimant had knowledge at that date, and his claim was accordingly statute-barred.

In the Kew case, the Court of Appeal considered what would justify a finding that a reasonable person would have attributed the injury to a breach by the defendant. The claimant suffered hand arm vibration syndrome, which began with a feeling of numbness in his fingers in the 1990s. In the late 1990s the claimant came to realise that his symptoms might not just be due to the ageing process, but only in March 2000 did he see a doctor about them. The doctor said that his symptoms might have been caused by exposure to vibration at work. In July 2000 the claimant was diagnosed with hand arm vibration syndrome. He issued proceedings in April 2004.

The Court of Appeal held that the relevant date of knowledge was in March 2000. The claimant then had sufficient information to justify a reasonable person making further enquiries about the cause of the injury. Although he was not expressly told of the causative link, he had information which a reasonable person would feel required to investigate. There was insufficient knowledge before that date because, although the claimant suspected his symptoms were not all due to ageing, he had no evidence of any link with his employment. Primary limitation had expired.

This article deals only with points in relation to the primary limitation period. Of course, practitioners should always be aware of the s. 33 discretion, because even a failure to issue in time is not always fatal.