Limitation of Actions Consultation - Law Commission

charged on land of thirty years from the accrual of the cause of action. 7
In relation
to latent damage, there is a separate provision (section 28A) dealing with disability.
As we shall see below, 8
that provision is a complex one.
8.4 The general effect of the postponement of the start of the limitation period in
section 28 is that defendants may remain exposed to the threat of litigation for an
indefinite period of time, particularly where the potential plaintiff suffers from
incurable mental disability. The problems this causes are illustrated in Headford v
Bristol and District Health Authority. 9
The plaintiff suffered permanent brain
damage, due to oxygen deprivation, in an operation at the defendant’s hospital in
1964 when he was ten months old. Proceedings seeking damages for the
negligence were issued in July 1992. In the interval several important witnesses,
including the anaesthetist, had died. It was apparent from statements served on
behalf of the plaintiff that his parents had become aware that they might have a
strong claim against the authority shortly after the operation. The judge at first
instance struck the action out as an abuse of the process of the court. The Court
of Appeal reversed this decision, and noted that the issue of a properly pleaded
first writ, within the time limit permitted by Parliament, is unlikely to be capable of
being categorised as an abuse of process. Delay, without more, would not cause
the institution of proceedings to be an abuse, if they were within that time limit. 10
8.5 Section 28 is restricted to cases where there is disability at the date when any right
of action accrued and, therefore, once time has started to run, a supervening
disability does not reset (or stop) the clock. 11
This is in line with the general
principle of English law that once time has started to run it is not to be suspended:
but it is capable of producing unjust results in the case of a person who suffers
from recurrent but intermittent mental illness, so that he or she may be under a
disability at some but not all times.
8.6 On the other hand, section 28A of the 1980 Act, 12
which concerns latent damage,
does deal (or at least is intended to deal) with disability which supervenes between
the accrual of a cause of action and the time when it becomes discoverable. It
provides:
(1) Subject to subsection (2) below, if in the case of any action for
which a period of limitation is prescribed by section 14A of this Act-
7 Section 28(4).
8 See paras 8.6 - 8.10 below.
9 [1995] PIQR P180, CA, reversing [1994] 5 Med LR 406, QBD.
10 See also Hogg v Hamilton [1992] PIQR P387.
11 Purnell v Roche [1927] 2 Ch 142. In personal injuries cases, supervening disability is
something which will be taken into account by the court in deciding under section 33 of the
1980 Act if it would be equitable to allow the action to proceed in spite of the expiry of the
limitation period: see para 3.72 above.
12 Inserted by the Latent Damage Act 1986, s 2(1).
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