Limitation of Actions Consultation - Law Commission

12.43 A final question is the extent to which the test of significance should be subjective.
We see no good reason to depart from the present law under which, as we have
seen, the test is partly objective and partly subjective so that the plaintiff’s
intelligence is taken into account. 68
12.44 We ask consultees whether they agree with our provisional proposals that:
(1) the definition of the date of knowledge (or date of discoverability)
should focus on three main factual elements:
(a) that the plaintiff has a cause of action
(b) against the defendant which is
(c) significant.
(2) A cause of action should be regarded as significant if a person with
the plaintiff’s abilities would have reasonably considered the cause
of action sufficiently serious to justify instituting proceedings
against the defendant, on the assumption that the defendant does
not dispute liability and has the resources to meet the claim.
If consultees do not agree with these provisional proposals, what proposals
would they prefer?
(c) What is meant by actual knowledge (of facts)?
12.45 In general, the concept of actual knowledge of facts is straightforward. One is
simply asking, did the plaintiff have personal knowledge of the relevant facts? As
we have seen in Part III, 69
to which we refer consultees, the problems thrown up
by the present law (in particular, by section 14(1) of the 1980 Act) have essentially
concerned the relationship between belief and knowledge. That is, what level of
belief by the plaintiff can be regarded as constituting actual knowledge?
12.46 The latest pronouncement on this was made by the Court of Appeal in Spargo v
North Essex District Health Authority. 70
It was there laid down that a plaintiff would
have actual knowledge (that an injury was attributable to an act or omission) when
she
so firmly believes that her condition is capable of being attributed to an act
or omission which she can identify ... that she goes to a solicitor to seek
advice about making a claim for compensation. 71
68 See para 12.33 above. We do not think that it should be relevant to the running of a
limitation period against a plaintiff who knows all the facts that he or she could not initially
afford to institute proceedings. We are unaware of any case on s 14(2) of the Limitation Act
1980 in which the question of the plaintiff’s resources has been discussed.
69 See paras 3.52 - 3.57 above.
70 [1997] PIQR P235. See para 3.55 above.
71 [1997] PIQR P235, P242.
266