Limitation of Actions Consultation - Law Commission

3.72 If the plaintiff is under disability when the cause of action accrues, then time does
not run until that disability ceases. 162
However, once time has started to run, it is
not automatically suspended by supervening (or recurring) disability. Such
disability however, may be taken into account under section 33. “Disability”, for
these purposes, has the same meaning as under section 28 of the Act, which is
limited to infancy and incapacity, due to mental disorder, to manage and
administer one’s property and affairs. 163
“The extent to which the plaintiff acted promptly and reasonably once he or she knew
whether or not the act or omission of the defendant, to which the injury was attributable,
might be capable at that time of giving rise to an action for damages”
3.73 For the purposes of this paragraph the plaintiff's conduct is assessed from the time
when he or she actually knew of the cause of action rather than from the time
when the plaintiff should have known. 164
The conduct of the plaintiff’s advisers
can also be taken into account under this paragraph. 165
“The steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice
and the nature of any such advice he may have received”
3.74 This paragraph has to be read in conjunction with those parts of section 14 which
make the date of knowledge dependent in part on expert advice received by the
plaintiff. The plaintiff cannot escape the operation of sections 11 and 14 by
showing that he or she received defective legal advice, but this is a matter which
can be taken into account under section 33. 166
3.75 The list in section 33(3) of factors to be taken into account is not exhaustive and
the court must consider all the circumstances of the case. 167
Other factors taken
into account by the court include the fact that the plaintiff may have an alternative
remedy, namely that of suing his or her solicitor for negligence in allowing the
limitation period to expire without issuing proceedings. 168
Also, the strength of the
plaintiff’s case is itself a relevant factor - the stronger the case, the more likely it is
162 See further below paras 8.2 - 8.5 below.
163 Section 38(2) to (4): Thomas v Plaistow, [1997] PIQR P540 (CA); Yates v Thakeham Tiles
Ltd [1995] PIQR P135. But physical disability can be taken into account as a general factor
under s 33: Pilmore v Northern Trawlers Ltd [1985] 1 Lloyd’s Rep 552; Dawson v Spain-
Gower (unreported, 18 October 1988) (CA).
164 In Obembe v City of Hackney Health Authority (unreported, 9 June 1989) Drake J, it was
held that it is not reasonable under this paragraph for the parents of a child injured at birth
through the alleged negligence of the defendant to delay bringing an action for damages in
respect of the injuries they suffered themselves through their child’s disability until the
child's majority merely because they know that time will not run until then for an action on
behalf of their child.
165 Thompson v Brown [1981] 1 WLR 744.
166 Waghorn v Lewisham Health Authority (unreported, 23 June 1987).
167 See, eg, Taylor v Taylor, The Times, 14 April, 1984 (CA).
168 The courts have consistently held that this is a factor to be taken into account, though it
cannot be conclusive. See Thompson v Brown [1981] 2 All ER 296 (HL); Browes v Jones &
Middleton (1979) 123 SJ 489 (CA).
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