Limitation of Actions Consultation - Law Commission

to the act or omission, which is clearly less onerous than establishing actual
causation. 92
3.47 The question arises whether knowledge of attributability, for the purpose of
section 14(1)(b), entails any knowledge of fault on the plaintiff’s part. Section
14(1) provides that “knowledge that any acts or omissions did or did not, as a
matter of law, involve negligence, nuisance or breach of duty is irrelevant.” The
courts have, as a general rule, rejected the suggestion that knowledge of the act or
omission need involve some knowledge of fault. In Broadley v Guy Clapham & Co 93
it was held that the reference to “negligence, nuisance or breach of duty” served
merely to identify the act or omission to which the paragraph referred, without
adding any connotations of fault. 94
And in Dobbie v Medway Health Authority, 95
the
Court of Appeal held that the plaintiff’s knowledge of attributability was not
postponed until she became aware that there was no malignant tumour and that
her breast had been removed unnecessarily. Sir Thomas Bingham MR said that if
an element of fault were imported into section 14(1)(b) it would “stultify” the
proviso to section 14(1). 96
3.48 If, however, the principle laid down in Broadley and Dobbie were to be applied
rigorously to all personal injury claims, so that fault were to be completely
irrelevant to the question of attributability, it could produce anomalies in cases
where the injuries were caused by an omission on the defendant’s part. This is
illustrated by the Court of Appeal’s decision in Smith v West Lancashire Health
Authority. 97
In that case, the plaintiff suffered injury as a result of the defendant’s
alleged failure to operate on a hand condition. It was held that the plaintiff could
not be regarded as having knowledge that his injuries were attributable to the
defendant’s omission until he actually knew that the defendant had failed to do
something: in other words, “[o]ne cannot know of an omission without knowing
what it is that is omitted.” 98
3.49 In Forbes v Wandsworth Health Authority 99
the plaintiff’s injury (that is, the loss of
his leg) had also been caused by an alleged negligent omission (that is, the failure
of the surgeon to operate early enough) although, in contrast to Smith v West
Lancashire Health Authority, the immediate cause of the injury was a positive action
92 Davis v Ministry of Defence, The Times, 7 August 1985; Wilkinson v Ancliff (BLT) Ltd [1986]
1 WLR 1352. See also Dobbie v Medway Health Authority [1994] 1 WLR 1234, 1240, per Sir
Thomas Bingham MR; Spargo v North Essex District Health Authority[1997] PIQR P235,
P242, per Brooke LJ.
93 [1994] 4 All ER 439, overruling Bentley v Bristol and Weston Health Authority[1991] 2 Med
LR 359.
94 Ibid, 448, per Hoffmann LJ.
95 [1994] 1 WLR 1234 (CA). For facts, see para 3.42 above.
96 Ibid, 1243. For the proviso, see para 3.39, n 75, above. See also Saxby v Morgan, [1997]
PIQR P531.
97 [1995] PIQR P514. See also Hallam-Eames v Merrett Syndicates Ltd [1996] 7 Med LR 112
(CA).
98 [1995]` PIQR P514 at P517, per Russell LJ.
99 [1997] QB 402 (see para 3.42 above for facts)
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