Limitation of Actions Consultation - Law Commission

3.44 The operation of section 14(2) may put pressure on plaintiffs to commence
proceedings before their injuries have developed fully. A plaintiff may be awarded
damages or (more likely) settle a claim before the full extent of the injury is known
which, conceivably, could result in under-compensation since damages may only
be claimed once in respect of the same cause of action. 86
This problem is
illustrated by Bristow v Grout. 87
Here the plaintiff suffered an injury to his leg and
some facial scarring in a road traffic accident. He brought a claim for damages
which was settled by the defendant’s insurers. However, he later developed more
serious problems in his hip which he claimed were a result of the accident.
Proceedings were instituted four years after the accident, but it was held that the
original settlement amounted to satisfaction of the entire claim. 88
Section 14(1)(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”
3.45 In order to satisfy section 14(1)(b) it is not necessary for the plaintiff to have
detailed knowledge of the process that brought about the injury, but merely to
have knowledge of “the essence of the act or omission to which the injury is
attributable.” 89
The detail of the plaintiff’s knowledge need not be sufficient to
enable him or her to draft a statement of claim, 90
although it will not be sufficient if
the putative knowledge is so vague and general that the plaintiff cannot fairly be
expected to know what he or she should investigate, or if what the plaintiff
supposes to be true is completely misconceived. 91
3.46 To establish knowledge of attributability for these purposes requires no more than
establishing that the plaintiff knew that the injury was capable of being attributed
86 It may be open to the plaintiff to bring a claim for provisional damages, although to do so
he or she would need to be aware that more serious injury was at least possible.
87 The Times, 3 November 1986 (QBD); affirmed, The Times, 9 November 1987(CA).
88 Jupp J also considered at first instance what the position would have been if the settlement
had not fully satisfied the claim. He noted that the “injury in question” in s 14(1)(a)
means the injury which first makes the bringing of proceedings worthwhile. Noting that
the plaintiff had thought it worth threatening proceedings immediately after the accident,
before he became aware of his hip injury, he thought that head injury and facial scarring
would amount to the “injury in question”, and time started to run against the plaintiff in
respect of all the injuries he suffered as soon as he became aware of the relevant facts about
his head injury. The Court of Appeal did not find it necessary to consider Jupp J’s
judgment on the question of limitation, as they upheld his finding that the plaintiff had only
one cause of action which had been finally satisfied by the original settlement.
89 Nash v Eli Lilly & Co [1993] 1 WLR 782, 799, per Purchas LJ. See also, eg, Broadley v Guy
Clapham & Co [1994] 4 All ER 439, 449 - 450, per Hoffmann LJ; Hallam-Eames v Merrett
Syndicate Ltd [1996] 7 Med LR 122, 126, per Hoffmann LJ. It has, however, been suggested
that some later decisions, especially Forbes v Wandsworth Health Authority [1997] QB 402,
may have increased the detail of knowledge which is needed to satisfy s 14(1)(b): see A
Bijlani, “Limitation in medical negligence cases: When is the plaintiff fixed with knowledge
- recent case law” [1997] JPIL 108, 114 - 117.
90 Wilkinson v Ancliff (BLT) Ltd [1986] 1 WLR 1352, 1365, per Slade LJ.
91 Broadley v Guy Clapham & Co [1994] 4 All ER 439, 449, per Hoffmann LJ.
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