Do you have the time?

District Judge Christopher Tromans considers limitation periods, knowledge and disability

When does the three-year primary limitation period in personal injury cases start to run? The obvious answer is the date of the accident, but section 11(4)(b) of the Limitation Act 1980 provides for an alternative if the date of knowledge of the injured person is a later date.

The details of the concept of date of knowledge are in section 14 of the Act and are not entirely straightforward.

The essence is that time does not start running until a claimant knows that the injury is significant and attributable to a known defendant or to someone for whose actions a known defendant is responsible.

A significant injury is one which would justify a claim for damages.

Knowledge can be both actual and what might reasonably be acquired from observable or ascertainable facts.

If the facts in question can only be ascertained with expert advice, a claimant is required to take all reasonable steps to obtain that advice.

All four facts specified in section 14(1) must be known to the claimant to start time running (Dobbie v Medway Health Authority [1994] 1 WLR 1234, CA).

Normally, the test of knowledge is an objective one by the standard of a reasonable man of moderate intelligence thinking about the source of the injury and not (as had been held in Nash v Eli Lilly & Co [1993] 1 WLR 782, CA), by taking into account the subjective characteristics of the individual claimant (Forbes v Wandsworth Health Authority [1997] QB 402, CA).

However, what is the position if the claimant is not a person of moderate intelligence but is under a disability?

Some examples suggest that in those circumstances the Eli Lilly approach should still be followed.

One is where a severely disabled minor wishes to make a claim on attaining his majority.

The parents are persons of moderate intelligence and have had the required degree of knowledge for years.

Should the knowledge of the parents be attributed to the claimant? In Parry v Clwyd Health Authority [1997] PIQR 1, it was held that the court should look exclusively at the claimant's knowledge.

However, this can include information which the claimant should reasonably have obtained from his parents (Bates v Leicester Health Authority [1998] Lloyds Law Reports Medical 210, CA).

Another and recent example is Adams v Bracknell Forest BC [2003] The Times, 14 May, CA.

The claimant was dyslexic and claimed damages on the basis that this had not been diagnosed when he was a pupil in the 1980s at a school run by the defendants.

He had not known that he was dyslexic until he spoke by chance to a psychologist in 1999.

He had not thought of taking expert advice earlier because of his low self-esteem.

It was held that the claimant had, in the circumstances, acted reasonably and that his date of knowledge was 1999.

Even if a claimant under disability is unsuccessful under section 14, a court might be ready to exercise its equitable discretion under section 33 and disapply the primary limitation period.

District Judge Christopher Tromans sits at Plymouth Combined Court Centre