Limitation of Actions Consultation - Law Commission

that an objective test should not be undermined,” 134
and emphasised the apparent
distinction in the judgment of Evans LJ between “situation” on the one hand, and
“character and intelligence” on the other. 135
It was held that the plaintiff’s
particular circumstances, where she was cared for by her parents and lived an
unusually sheltered life, could properly be taken into account in setting the
standard of the test in section 14(3).
3.62 Although the plaintiff takes reasonable steps to obtain expert advice, it may be that
the expert fails to discover the facts relevant to the plaintiff’s claim. It must then
be asked whether the plaintiff has constructive knowledge of the facts which the
expert could have discovered and passed on to the plaintiff. Because of the proviso
to section 14(3), 136
the plaintiff will, as a general rule, not be fixed with
constructive knowledge of the facts in these circumstances, 137
even where the
plaintiff apparently suspects that those facts may be true. 138
But where the proviso
is capable of applying, it will do so only where the plaintiff could not have
ascertained the facts without the help of an expert, and the onus placed on the
plaintiff, in terms of enquiries which can be expected to be made by a plaintiff on
his or her own behalf, is a heavy one. 139
3.63 The actions expected of a plaintiff under section 14(3) will generally include the
obtaining of legal advice, and doing so reasonably promptly. 140
This is because,
although section 14(1) specifies as irrelevant the knowledge that acts or omissions
did or did not, as a matter of law, involve negligence, nuisance or breach of duty,
instructing a solicitor will be expected to give the plaintiff fuller knowledge of the
relevant facts, especially as to the attributability of the plaintiff’s injury to the
defendant’s acts or omissions, 141
not only of the legal implications of those facts. 142
134 Ibid, 414.
135 Ibid.
136 See para 3.38 above.
137 See, eg, Marston v British Railways Board [1976] ICR 124. The proviso will also, conversely,
protect the plaintiff if he or she reasonably fails to instruct an expert, but in fact there are
relevant facts which are ascertainable only by experts (see T Prime and G P Scanlan, The
Modern Law of Limitation (1993), p 160) and possibly if, after being instructed, the expert
discovers relevant facts but reasonably refrains from disclosing them to the plaintiff (see T
Prime and G P Scanlan, op cit, p 161).
138 See, eg, Davis v Ministry of Defence, The Times, 7 August 1985; Stephen v Riverside Health
Authority [1990] 1 Med LR 261. Cf Baig v City and Hackney Health Authority [1994] 5
Med LR 221.
139 In Leadbitter v Hodge Finance Ltd [1982] 2 All ER 167, 174 - 175, it was held that no expert
advice was necessary to obtain a police report of a road accident, make enquiries of the fire
brigade or local residents and interview potential witnesses.
140 There is authority for the view that the time within which a plaintiff may be expected to
instruct solicitors will be affected by the plaintiff’s resources and position in relation to legal
aid: Khan v Ainslie [1993] 4 Med LR 319. Cf Jones v Bennett [1976] 1 Lloyd’s Rep 484. But
it would appear that the plaintiff’s financial position would now not be relevant under the
‘objective’ approach adopted in Forbes v Wandsworth Health Authority [1996] 3 WLR 1108.
141 Limitation Act 1980, s 14(1)(b).
142 Hills v Potter [1983] 3 All ER 716 (Hirst J); Newton v Cammell Laird & Co Ltd [1969] 1
WLR 415.
50