Limitation of Actions Consultation - Law Commission

The courts have not, however, consistently taken this position. In Nash v Eli Lilly
& Co, 79
which concerned side-effects caused by a drug, plaintiffs were held to
know that the injury was significant only when they were aware that their
symptoms were “completely outside” those experienced with normal, acceptable
side-effects. 80
3.42 But in two more recent cases the Court of Appeal has taken a different approach.
First, in Dobbie v Medway Health Authority, 81
where the plaintiff’s breast was
removed after an allegedly negligent diagnosis of a malignant tumour, the Court of
Appeal held that the plaintiff had knowledge of a significant injury immediately
after the operation, not when the plaintiff realised that the injury was the result of
a mishap. Sir Thomas Bingham MR said:
The requirement that the injury of which a plaintiff has knowledge
should be “significant” is, in my view, directed solely to the quantum of
the injury and not to the plaintiff’s evaluation of its cause, nature or
usualness. Time does not run against a plaintiff, even if he is aware of
the injury, if he would reasonably have accepted it as a fact of life or
not worth bothering about. It is otherwise if the injury is reasonably to
be considered as sufficiently serious within the statutory definition:
time then runs (subject to the requirements of attributability) even if
the plaintiff believes the injury to be normal or properly caused. 82
The same reasoning was applied in Forbes v Wandsworth Health Authority 83
where
the Court of Appeal held that a plaintiff, whose leg had been amputated as a result
of an allegedly negligent delay in treatment, was aware of a significant injury
immediately after the amputation. Following Dobbie and Forbes it appears that the
fact that the plaintiff considers the injury to be a normal or expected occurrence
will not delay the plaintiff’s knowledge of its significance.
3.43 There are likely to be few injuries where a plaintiff can reasonably consider that it
is not worth suing on the basis that the hypothetical defendant posited by section
14(2) both admits liability and has the means to satisfy the judgment. The
threshold set by the subsection is, therefore, extremely low. Provided that the
gravity of the injury exceeds this low threshold, 84
time will run against the plaintiff
even though it is subsequently discovered that the injury is far more serious than
first thought. 85
79 [1993] 1 WLR 782 (CA).
80 Ibid, 790 - 792, per Purchas LJ. Cf the passage at p 799 where it appears to be recognised
that the attributability of the injury is relevant to s 14(1)(b), not to s 14(1)(a).
81 [1994] 1 WLR 1234.
82 Ibid, 1241 - 2.
83 [1997] QB 402, 207 - 408, per Stuart-Smith LJ (with whom Evans and Roch LJJ agreed on
this issue).
84 And provided that the plaintiff has knowledge of the other s 14(1) facts.
85 Miller v London Electrical Manufacturing Co Ltd [1976] 2 Lloyd’s Rep 284 (CA). See also
Goodchild v Greatness Timber Co Ltd [1968] 2 QB 372.
42