Limitation of Actions Consultation - Law Commission

that a woman who after a failed sterilisation operation becomes pregnant, and then
gives birth to a child, can by reason of those events be said to have suffered
“personal injuries”. Therefore the resulting claim for damages for the costs of
rearing the child (as distinct from any claim for pain and suffering during
pregnancy) was a claim for damages for personal injuries within section 11 of the
1980 Act. However, some members of the Court of Appeal were troubled by the
idea that conception, normal pregnancy and birth of a healthy child can properly
be described as personal injury. They thought that the position would be even
more difficult if the pregnancy was not unwanted from the woman’s point of view
but was the result of intercourse with a man who had had an unsuccessful
vasectomy. All members of the court were agreed on the desirability of having a
uniform limitation period for all cases of this type, irrespective of whether the
action is brought by the father or the mother and irrespective of whether the
damages claimed include pain and suffering during the pregnancy.
(b) The date of knowledge 74
(i) Introduction
3.38 The date of knowledge for the purposes of a personal injuries action is defined in
section 14(1) of the 1980 Act as the date on which the plaintiff first knew the
following facts:
(a) that the injury in question was significant; and
(b) that the injury was attributable in whole or in part to the act or
omission which is alleged to constitute nuisance, negligence or breach
of duty; and
(c) the identity of the defendant; and
(d) if it is alleged that the act or omission was that of a person other
than the defendant, the identity of that person and the additional facts
supporting the bringing of an action against the defendant.
Section 14(3) provides that the plaintiff’s knowledge includes:
knowledge which he might reasonably have been expected to acquire -
(a) from facts observable or ascertainable by him; or
(b) from facts ascertainable by him with the help of medical or
other appropriate expert advice which it is reasonable for him to
seek;
but a person shall not be fixed under this subsection with knowledge of
a fact ascertainable only with the help of expert advice so long as he
74 See further, A McGee Limitation Periods (2nd ed 1994), Ch 8; M A Jones Limitation Periods
in Personal Injury Actions (1995), Ch 2; R Redmond-Cooper Limitation of Actions (1992), Ch
6; T Prime and G Scanlan The Modern Law of Limitation (1993), Ch 10. The expressions
“constructive knowledge” and “actual knowledge” are not used in the 1980 Act but the
courts almost invariably use them to refer respectively to knowledge under s 14(3) of the
Act, and to knowledge under s 14(1) other than constructive knowledge.
40