Limitation of Actions Consultation - Law Commission

assess the intelligence of the plaintiff; consider and assess his assertions
as to how he regarded such information as he had; and determine
whether he had knowledge of the facts by reason of his understanding
of the information. 113
3.54 So the court will attempt to ascertain what the particular plaintiff knew, by
reference to the information received by the plaintiff, and the extent to which that
plaintiff would have evaluated the information, and compare it against the
yardstick of the knowledge which that plaintiff would reasonably have needed
before embarking on the preliminaries to litigation. The test as to whether the
plaintiff has actual knowledge is therefore not a wholly subjective one because it
depends on a “yardstick” which is partly objective. 114
3.55 On the other hand, the Court of Appeal in Spargo v North Essex District Health
Authority 115
appeared to regard the test to be adopted as a subjective one. Brooke
LJ, giving the judgment of the court, said:
A plaintiff has the requisite knowledge when she knows enough to make it
reasonable for her to begin to investigate whether or not she has a case
against the defendant. Another way of putting this is to say that she will
have such knowledge if she so firmly believes that her condition is capable
of being attributed to an act or omission which she can identify (in broad
terms) that she goes to a solicitor to seek advice about making a claim for
compensation... On the other hand she will not have the requisite
knowledge if she thinks she knows the acts or omissions she should
investigate but in fact is barking up the wrong tree: or if her knowledge of
what the defendant did or did not do is so vague or general that she cannot
fairly be expected to know what she should investigate; or if her state of
mind is such that she thinks her condition is capable of being attributed to
the act or omission alleged to constitute negligence, but she is not sure
about this, and would need to check with an expert before she could be
properly said to know that it was.
3.56 This subjective approach appears to mean, therefore, that the ‘impetuous
plaintiff’, who considers himself or herself to know the relevant facts, on the basis
of less information than would be sufficient to convince a reasonable plaintiff, is
regarded as having actual knowledge. Conversely, the ‘cautious plaintiff’, who
refuses to consider himself or herself as having the relevant facts until he or she has
confirmation from four experts (when one or two experts ought to have been
sufficient), is not regarded as having actual knowledge.
3.57 As we have mentioned, the position may be complicated by the existence of expert
advice which indicates that the plaintiff may not have a claim. If, at the time when
the plaintiff receives such advice, he or she has already acquired actual knowledge
for the purposes of section 14(1), the limitation period will already have begun and
113 Ibid.
114 That is, it depends on the question of what the plaintiff would have needed to know before
it would be reasonable for him or her to take advice or take any other pre-litigation steps.
115 [1997] PIQR P235, P242.
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