Limitation of Actions Consultation - Law Commission

(that is, the amputation). The Court of Appeal held that the “act or omission
which is alleged to constitute negligence, nuisance or breach of duty” should be
construed in this case as the alleged failure of the defendant to operate at a time
when doing so might have saved the leg, or the alleged loss of the opportunity to
prevent the plaintiff’s injury. 100
The plaintiff did not acquire actual knowledge of
this alleged failure until he received expert advice nearly ten years later. 101
It was
recognised that to take this approach to negligent omissions may well mean that in
some cases the plaintiff might not acquire knowledge of attributability until he or
she knew that there had been negligence, but this did not undermine the crucial
distinction, posed by section 14(1), between causation, which was relevant, and
negligence, which was not. 102
Section 14(1)(c):“The identity of the defendant”
3.50 The most obvious instance of section 14(1)(c) being a relevant factor would be
where the plaintiff was the victim of a “hit-and-run driver”. 103
However, the rule
can also be applied where the plaintiff discovers only at a late stage the identity of
a second defendant. 104
It is also relevant where the defendant is part of a group of
companies. In Simpson v Norwest Holst Southern Ltd, 105
the plaintiff was under a
reasonable misapprehension as to which company in a group of companies was
actually his employer. Time did not start to run until he was able to identify
accurately which one employed him. On the other hand, once the identity of the
defendant is known, it is not relevant that he or she cannot be located.
Section 14(1)(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”
3.51 This applies in cases of vicarious liability where the plaintiff does not immediately
discover that there is someone who is vicariously liable for the acts of the
tortfeasor. Time will, of course, run against the actual tortfeasor independently of
any delay in starting the limitation period against the employer.
100 Ibid, 408 - 411, per Stuart-Smith LJ (with whom Roch LJ concurred); 421, per Evans LJ. It
has been suggested that the test applied by Stuart-Smith and Roch LJ differs from that
applied by Evans LJ in that the former regards it as necessary that the operation “should
have been carried out sooner than it was”, whereas the latter does not regard as necessary
anything more than the knowledge of a lost opportunity: A Bijlani, “Limitation in medical
negligence cases: When is the plaintiff fixed with knowledge - recent case law” [1997] JPIL
108, 116 - 117. But we are doubtful whether the crucial sentence of Stuart-Smith LJ’s
judgment - “Did the [plaintiff] know prior to receipt of [expert advice] that the loss of his
leg was attributable ... to the omission to operate sooner than 11.45 am on the second
day?” (p 408) adds anything further to the degree of knowledge required by Evans LJ.
101 Although the court held (Roch LJ dissenting) that the plaintiff had constructive knowledge:
see para 3.59 below.
102 [1997] QB 402, 411, per Stuart-Smith LJ. See also [1997] QB 404, 421, per Evans LJ.
103 Although in practice there is a high likelihood that it would not be worthwhile to claim
against such a driver.
104 Walford v Richards [1976] 1 Lloyd’s Rep 526 (CA).
105 [1980] 1 WLR 968.
45