Limitation of Actions Consultation - Law Commission

the negative advice will not be sufficient to stop it: but if the plaintiff has not
already acquired knowledge the existence of the negative advice will be a factor to
be taken into account in deciding whether, from that time on, the plaintiff does
so. 116
So, for example, one could conceive of a situation where a plaintiff, unsure of
whether his or her injury might be attributable to the plaintiff’s acts, obtained one
positive but very tentative medical opinion, followed by a firmly negative one. The
second opinion would be likely to prevent time from starting to run, as far as
actual knowledge was concerned, until the plaintiff received more positive
information. 117
(iv) What is meant by constructive knowledge of a fact?
3.58 Section 14(3) assumes that the plaintiff can reasonably be expected to discover
relevant facts via two possible routes. First, he or she can observe or ascertain
relevant facts himself or herself. This may be done by way of active investigation
on the plaintiff’s part, 118
or it may occur through the plaintiff’s observation of the
media. 119
Secondly, he or she may discover facts through the advice of experts. The
position in relation to legal advice is different from that in relation to advice from
other experts, and we discuss it separately below. 120
3.59 Section 14(3) obviously lays down an objective test, but it must be asked whether
the test is purely objective, or whether it contains an element of subjectivity in
taking into account some (or all) of the attributes of the individual plaintiff. Before
the provision that is now subsection 14(3) was enacted in its present form, 121
the
courts construed its differently worded predecessor 122
so that the particular
plaintiff’s qualities were taken into account. 123
This approach continued in
construing subsection 14(3). For example, in Nash v Eli Lilly & Co, 124
Purchas LJ,
giving the judgment of the Court of Appeal, said that “the situation, character and
intelligence of the plaintiff must be relevant” in deciding whether there was
constructive knowledge. 125
But in Forbes v Wandsworth Health Authority 126
all three
members of a differently constituted Court of Appeal expressed doubts that an
objective test such as the one in section 14(3) could be properly combined with an
116 Nash v Eli Lilly & Co [1993] 1 WLR 782, 796, per Purchas LJ .
117 Delay in seeking a further opinion could result in the plaintiff acquiring constructive
knowledge: see para 3.62 below.
118 See, eg, Common v Crofts (unreported, 15 Feb 1980) CA.
119 See, eg, Nash v Eli Lilly & Co [1993] 1 WLR 782, 800, per Purchas LJ.
120 See paras 3.63 - 3.65 below.
121 By the Limitation Act 1975.
122 Limitation Act 1963, s 7(5).
123 See, eg, Central Asbestos Co Ltd v Dodd [1973] AC 518, 530, where Lord Reid said that
“[l]ess is expected of a stupid or uneducated man than of a man of intelligence and wide
experience”. See also, eg, Newton v Cammell Laird & Co Ltd [1969] 1 WLR 415, 419 - 420,
per Lord Denning MR.
124 [1993] 1 WLR 782.
125 Ibid, 799.
126 [1997] QB 402.
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