Limitation of Actions Consultation - Law Commission

negligence (because this is all that the latent damage provisions concern) is
contained in section 14A(9). On the other hand, in cases of personal injury or
death the factors to be taken into account in deciding whether to exercise the
discretion to disapply the limitation period, in section 33 of the 1980 Act, include
“the extent to which the plaintiff acted promptly and reasonably once he knew
whether or not the act or omission of the defendant, to which the injury was
attributable, might be capable at that time of giving rise to an action for damages”
and “the steps, if any, taken by the plaintiff to obtain medical, legal or other expert
advice and the nature of any such advice he may have received”. 87
12.60 The present law on this issue is based on the recommendations of the Law Reform
Committee, 88
in response to case law on the correct interpretation of section
7(3)(c) of the Limitation Act 1963. In a series of cases the courts had interpreted
“the fact that the personal injuries so resulting were attributable to that negligence,
nuisance or breach of duty” as meaning that matters of law were relevant to the
test of knowledge. 89
These culminated in the Court of Appeal’s decision in Smith v
Central Asbestos Co Limited, 90
in which Lord Denning MR said that “time does not
run against a man until he knows, actually or constructively, that he has a
worthwhile cause of action against his employer.” 91
But this interpretation was
rejected on appeal by a majority of the House of Lords in Central Asbestos Co Ltd v
Dodd. 92
12.61 The Law Reform Committee agreed with the majority in Central Asbestos Co
Limited v Dodd. It thought that knowledge of a legal remedy should not form part
of the test of date of knowledge for two principal reasons. First, it would be
difficult to introduce an exception for personal injuries to the principle that
ignorance of the law is no excuse without making similar exceptions elsewhere in
87 The courts have on a number of occasions held that the limitation period should be
disapplied in favour of a plaintiff who has failed to act in time through lack of knowledge of
his or her legal rights. See notably, Halford v Brookes [1991] 1 WLR 428; and Coad v
Cornwall and Isles of Scilly Health Authority [1997] 1 WLR 189. See also s 32A(2) of the
1980 Act: para 3.106 above.
88 Law Reform Committee, Twentieth Report (Interim Report on Limitation of Actions: in Personal
Injury Claims) (1974) Cmnd 5630, paras 49 - 55.
89 See Pickles v National Coal Board [1968] 1 WLR 997; Skingsley v Cape Asbestos Co Ltd
[1968] 2 Lloyd’s Rep 201; Newton v Cammell Laird & Co Ltd [1969] 1 WLR 415;
Drinkwater v Joseph Lucas & Co (Electrical) Ltd [1970] 3 All ER 769; Knipe v British
Railways Board [1972] 1 QB 361.
90 [1972] 1 QB 244.
91 Ibid, 258.
92 [1973] AC 518. The majority comprised Lord Simon of Glaisdale and Lord Salmon, who
both held that the defendant’s appeal should therefore succeed, and Lord Pearson, who
held that although knowledge of the defendant’s legal liability was immaterial, knowledge
that the defendant was at fault was relevant, and on that basis he joined the other two
members of the court (Lord Reid and Lord Morris of Borth-y-Gest) in dismissing the
defendant’s appeal. For discussion of Dodd see the Law Reform Committee, Twentieth
Report (Interim Report on Limitation of Actions: in Personal Injury Claims) (1974) Cmnd 5630,
paras 42 - 46 and Appendix A.
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