(back to preceding text)

    36.  Widgery LJ (at p 421) expressed a similar view:

"When one has to consider constructive notice under section 7(5)(c) it is necessary to look at all the circumstances of the particular individual concerned to see whether, when all those circumstances are looked at in the round, it can be said that his failure to take advice was reasonable."

    37.  In Smith v Central Asbestos Co Ltd [1972] 1 QB 244 the Court of Appeal applied this test and in the House of Lords [1973] AC 518, 530 Lord Reid said:

"I agree with the view expressed in the Court of Appeal that this test is subjective. We are not concerned with 'the reasonable man'. Less is expected of a stupid or uneducated man than of a man of intelligence and wide experience."

    38.  This was, however, an obiter dictum because the case turned upon the question of whether the plaintiff needed to know that his injury was attributable to the defendant's negligence or fault. On this point the House was divided.

    39.  The Central Asbestos case revealed some defects in the 1963 Act (Lord Reid said, at p 529, that it had "a strong claim to the distinction of being the worst drafted Act on the statute book") and the Law Reform Committee was invited to look at it. Its main recommendation in relation to the date of knowledge was that it should not be necessary for the plaintiff to know that he had a cause of action or that the defendant had in some sense been at fault: see paragraphs 53 to 55 of the committee's 20th Report (1974) (Cmnd 5630). But the committee also considered (at paragraph 59) whether "the definition of constructive knowledge should apply an objective or subjective test." It agreed that the definition of constructive knowledge should allow the court to consider all the circumstances of the case, including the fact that most people do not have a legal or business-like turn of mind and that a plaintiff may, as a result of an accident, "have been rendered less diligent in the protection of his interests than he would otherwise have been." They cited with approval, as exemplifying this approach, the passage from the judgment of Widgery LJ in Newton's case to which I have already referred. On the other hand, they thought that these matters were already implicit in the concept of the reasonable man.

    40.  Finally, the committee recommended (at paragraphs 56 and 57) that the court should have a residual discretion to disapply the limitation period after considering the hardship which barring the action would cause to the plaintiff and allowing it to proceed would cause to the defendant.

    41.  The 1963 Act was repealed and the law recast substantially in accordance with the recommendations of the Law Reform Committee by the Limitation Act 1975. These provisions were consolidated in the 1980 Act.

    42.  In recent years the courts have tended to emphasise the objective element in the constructive knowledge test and to reduce what Lord Macmillan in Glasgow Corporation v Muir [1943] AC 448, 457 called "the personal equation". In Forbes v Wandsworth Health Authority [1997] QB 402 the question was whether the plaintiff, who had a history of circulatory problems in his legs, ought to have sought advice as to why an attempted by-pass operation had resulted in one leg having to be amputated. When he did inquire, some 10 years after the event, he was told that it was because the operation had been unsuccessful and resulted in a loss of blood supply which threatened gangrene. This was not in itself alleged to be negligent, but the surgeon had made a second unsuccessful attempt to operate on the following day and the plaintiff was advised that he would have had a better chance of success if he had tried again earlier.

    43.  The judge found that the plaintiff (who had since died) did not have constructive knowledge that the loss of his leg was caused by any act or omission on the part of the surgeon. He trusted the surgeon (who had performed two previous successful operations on his legs) and thought he had simply suffered a misfortune. Stuart-Smith LJ was prepared to accept that one might not be able to say that such an attitude was unreasonable, but thought that section 14(3) would fail in its purpose unless it was assumed that a reasonable victim of an injury such as the loss of a leg will display some curiosity about why it should have happened. He pointed out that otherwise the limitation period could be indefinitely extended. Until three years after the date of knowledge was found to have been passed, the plaintiff had an absolute right to sue. This could be unjust to defendants who, contrary to the policy of the Act, would be vexed with stale claims. On the other hand, tightening up the requirements of constructive knowledge need not involve injustice to a plaintiff because the discretion under section 33 gave the court power to allow him to sue when it was equitable to do so. But section 33, unlike section 14, allowed the court to consider fairness to both sides. So Stuart-Smith LJ said, at p 413:

"In my judgment, a reasonable man in the position of the deceased, who knew that the operation had been unsuccessful, that he had suffered a major injury which would seriously affect his enjoyment of life in the future, would affect his employability on the labour market, if he had any, and would impose substantial burdens on his wife and family in looking after him, if he was minded to make a claim at any time, should and would take advice reasonably promptly."

    44.  Evans LJ, at p 422, likewise relied upon the policy and scheme of the Act as a whole:

"Since there is a wide discretionary power to extend the period in circumstances which Parliament has defined in section 33, there is no clear requirement to construe the knowledge provisions in section 14 narrowly or in favour of individual plaintiffs. I therefore consider that they should be interpreted neutrally so that in respect of constructive knowledge under section 14(3) an objective standard applies."

    45.  I find this reasoning persuasive. The Court of Appeal did not refer to the decisions on the 1963 Act which had taken a more subjective view. While it is true that the language of section 7(5) of the 1963 Act was not materially different from that of section 14(3) of the 1980 Act, I think that the Court of Appeal in Forbes was right in saying that the introduction of the discretion under section 33 had altered the balance. As I said earlier, the assumptions which one makes about the hypothetical person to whom a standard of reasonableness is applied will be very much affected by the policy of the law in applying such a standard. Since the 1975 Act, the postponement of the commencement of the limitation period by reference to the date of knowledge is no longer the sole mechanism for avoiding injustice to a plaintiff who could not reasonably be expected to have known that he had a cause of action. It is therefore possible to interpret section 14(3) with a greater regard to the potential injustice to defendants if the limitation period should be indefinitely extended.

    46.  I therefore think that Lord Reid's dictum in Smith v Central Asbestos Co Ltd [1973] AC 518, 530 that the "test is subjective" is not a correct interpretation of section 14(3). The same is true of a dictum of Purchas LJ in Nash v Eli Lilly & Co [1993] 1 WLR 782, 799:

"The standard of reasonableness [is] finally objective but must be qualified to take into consideration the position, and circumstances and character of the plaintiff…In considering whether or not the inquiry is, or is not, reasonable, the situation, character and intelligence of the plaintiff must be relevant".

    47.  It is true that the plaintiff must be assumed to be a person who has suffered the injury in question and not some other person. But, like Roch LJ in Forbes [1997] QB 402, 425 I do not see how his particular character or intelligence can be relevant. In my opinion, section 14(3) requires one to assume that a person who is aware that he has suffered a personal injury, serious enough to be something about which he would go and see a solicitor if he knew he had a claim, will be sufficiently curious about the causes of the injury to seek whatever expert advice is appropriate.

    48.  The judge held that Mr Adams acted reasonably in making no inquiry into the reasons for his literacy problems. I do not think that he based this finding upon matters of character or intelligence which were peculiar to Mr Adams. If the judge had been relying upon his personal characteristics, he might have been hard put to explain why someone who was willing to confide in a lady he met at a dancing party was unable to confide in his doctor. But the judge appears to have thought that extreme reticence about his problems was the standard behaviour which ought to be expected from anyone suffering from untreated dyslexia and that the conversation with Ms Harding was an aberration.

    49.  In principle, I think that the judge was right in applying the standard of reasonable behaviour to a person assumed to be suffering from untreated dyslexia. If the injury itself would reasonably inhibit him from seeking advice, then that is a factor which must be taken into account. My difficulty is with the basis for the finding that such a person could not reasonably be expected to reveal the source of his difficulties to his medical adviser. In the absence of some special inhibiting factor, I should have thought that Mr Adams could reasonably have been expected to seek expert advice years ago. The congeries of symptoms which he described to Dr Gardner, which he said had been making his life miserable for years, which he knew to be rooted in his inability to read and write and about which he had sought medical advice, would have made it almost irrational not to disclose what he felt to be the root cause. If he had done so, he would no doubt have been referred to someone with expertise in dyslexia and would have discovered that it was something which might have been treated earlier.

    50.  The judge's finding as to the generally inhibiting effect of untreated dyslexia appears to have been based upon judicial notice. There was certainly no basis for such a finding in Dr Gardner's report, which was the only expert evidence before him. What the report did establish was that dyslexics are characteristically normal intelligent people and that Mr Adams was such a person. Although one can easily understand someone wanting to avoid the social embarrassment of revealing his difficulties about reading and writing to colleagues at work and other acquaintances, I think that it would need some evidential foundation before one could assume that such a person was likely to be unable to speak about the matter to his doctor. Such evidence was entirely lacking.

    51.  In my opinion, there is no reason why the normal expectation that a person suffering from a significant injury will be curious about its origins should not also apply to dyslexics. In the absence of such an expectation, there is no reason why the limitation period should not be prevented from running for an indefinite period until some contrary impulse leads to the discovery which brings it to an end. For the reasons given by Stuart-Smith LJ in Forbes's case, this could face a defendant with a claim so stale as to be virtually impossible to defend. It also means that although Tuckey LJ said, at para 26, that the decision of the judge and Court of Appeal did not mean that "such a conclusion would be reached in every case where, by chance, sometimes many years later, a claimant discovers that he is or may be dyslexic", I do not find it easy to see why not.

    52.  For these reasons the date of constructive knowledge was in my opinion well before three years before the issue of the writ.

    53.  That leaves the question of whether the court should exercise its discretion to disapply the limitation period under section 33. Neither party invited your Lordships to remit this matter to the judge but made submissions on the basis that the House would exercise the discretion itself. The Court of Appeal said, at para 28, that if it had been necessary to apply section 33, it was "most unlikely" that it would have allowed the claim to proceed.

    54.  In Robinson v St Helens Metropolitan Borough Council [2003] PIQR P128, P139-140 Sir Murray Stewart-Smith said:

32. The Limitation Acts are designed to protect defendants from the injustice of having to fight stale claims especially when any witnesses the defendants might have been able to rely on are not available or have no recollection and there are no documents to assist the court in deciding what was done or not done and why. These cases are very time consuming to prepare and try and they inevitably divert resources from the education authority to defending the claim rather than teach. Under section 33 the onus is on the claimant to establish that it would be equitable to allow the claim to proceed having regard to the balance of prejudice.

33. The question of proportionality is now important in the exercise of any discretion, none more so than under section 33. Courts should be slow to exercise their discretion in favour of a claimant in the absence of cogent medical evidence showing a serious effect on the claimant's health or enjoyment of life and employability. The likely amount of an award is an important factor to consider, especially if, as is usual in these cases, they are likely to take a considerable time to try. A claim that the claimant's dyslexia was not diagnosed or treated many years before at school, brought long after the expiry of the limitation period, extended as it is until after the claimant's majority, will inevitably place the defendants in great difficulty in contesting it, especially in the absence of relevant witnesses and documents. The contesting of such a claim would be both expensive and likely to divert precious resources. Courts should be slow in such cases to find that the balance of prejudice is in favour of the claimant.

    55.  Peter Gibson and Brooke LJJ agreed. Their Lordships think that these observations from judges with considerable experience of exercising and overseeing the section 33 jurisdiction carry great weight. As in Phelps, where the plaintiff recovered £12,500 general damages and about £32,000 special damages (mostly an estimate of loss of earnings), the uncertainties of causation and quantification mean that in the event of success an award is likely to be relatively modest. The council is in a very difficult position and there are no special features about the reasons why Mr Adams left his claim so late which tilt the balance in his favour.

    56.  I would therefore allow the appeal and dismiss the action.

LORD PHILLIPS OF WORTH MATRAVERS

    My Lords,

    57.  I agree, for the reasons given by my noble and learned friend Lord Hoffmann that this appeal should be allowed. I have reached that conclusion regardless of the precise test for "constructive knowledge" laid down by section 14(3) of the 1980 Act. It will be a rare case where the result turns on the true construction of that sub-section and this is not such a case. Nonetheless I share the conclusion of Lord Hoffmann as to the correct test for the reasons that he gives.

    58.  I would add that the test of what is reasonable is one which is a recurrent motif in the provisions of the 1980 Act and some, at least, of those provisions suggest that the test of what is reasonable is an objective test which applies the standards of the reasonable man. Thus the reference to "all reasonable steps" in section 14(3)(b) itself and, in a similar context, in section 14A(10)(b) suggests an objective standard. The same is true of the provision in section 14A(7) that "… the material facts about the damage are such facts about the damage as would lead a reasonable person who had suffered such damage to consider it sufficiently serious to justify his instituting proceedings… ". These provisions lend some support to the conclusion that the standard of reasonable behaviour for the purposes of section 14(3) is one which does not have regard to aspects of character or intelligence which are peculiar to the claimant.

LORD SCOTT OF FOSCOTE

My Lords,

    59.  There are three issues on this appeal. First, there is the question whether the respondent's action for damages is one where "the damages claimed … include damages in respect of personal injuries …" to the appellant. If it is, then it is an action to which section 11 of the Limitation Act 1980 and, consequently, section 14 apply.

    60.  The second issue, assuming that sections 11 and 14 do apply, is how section 14(3) should be applied to the facts of this case. This is the constructive notice issue. What was the respondent's "date of knowledge" (see section 14(1)) from which the three year limitation period applicable to his personal injuries action (if that is what it is) runs?

    61.  The third issue, which arises only if section 11 applies and the normal limitation period of three years has expired, is whether it would nonetheless "be equitable" to allow the action to proceed (section 33(1)).

    62.  I have had the advantage of reading in advance the opinion of my noble and learned friend Lord Hoffmann and agree with his conclusions on each of these three issues. Since, however, we are disagreeing with the conclusions reached by the trial judge and by a unanimous Court of Appeal, I propose very briefly to explain in my own words my reasons for disagreeing.

The first issue

    63.  Section 38(1) of the 1980 Act defines "personal injuries" as including "… any impairment of a person's physical or mental condition". So, is the respondent claiming damages for the impairment of his physical or mental condition?

    64.  The nature of the respondent's claim must be taken from his pleaded case. From 1977, when he was five years old, to 1988, when he was 16, he was a pupil at schools for which the appellant council, was, or has become, responsible. By 1981 his reading ability had fallen substantially behind the standard to be expected of someone of his age. This retardation persisted so that by the time he left school he was barely literate. His literacy retardation reduced his competence across the entire school curriculum. He had been from, at least 1981, a candidate for specialised educational assessment but he was never referred for such assessment. If he had been so referred a diagnosis of dyslexia might have been made and remedial steps taken.

    65.  The respondent says that the teachers at the schools he attended owed him a duty:

"to use reasonable professional skill and care to educate [him] and in doing so to assess and treat his educational needs and problems" (para 2 of the particulars of claim).

He says that they were in breach of that duty:

"in that they failed to identify [his] special learning difficulty, namely, dyslexia and failed to use appropriate teaching to ameliorate his difficulties" (para 7 of the particulars of claim)

and that as a result he has suffered personal injury, loss and damage.

    66.  The "particulars of injury", given under paragraph 9 of the particulars of claim, bear upon the question whether the damages claimed include damages for personal injuries. The particulars include the following:

"The claimant has a pattern of specific learning disabilities of a dyslexic nature. These are considered to be severe in nature. Had the claimant's dyslexia been diagnosed and had he been taught appropriately at school the claimant would have achieved higher examination results and a higher degree of general literacy. The claimant suffers from psychological/psychiatric syndromes, namely panic attacks, social phobia and symptoms of depression that are causally related to the non-diagnosis and non-treatment of his constitutional dyslexic difficulties"

The particulars of injury refer also to a lack of future employment prospects and a reduced learning capacity but the passage I have cited is that on which reliance must be placed if the action is to be categorised as one for "personal injuries".

    67.  It is important when considering the first issue to keep in mind that the alleged negligence of the educational authorities did not cause the respondent's dyslexia. His complaint is that they failed to take steps to counteract its effect, to "ameliorate" his difficulties (see para 7 of the particulars of claim). He seeks damages for the consequences of that failure. Subject to the Limitation Act point I would be in no doubt but that if the respondent can establish that in failing to teach him to read the schools were in breach of the duty they owed him he would be entitled at least to general damages. The ability to read is a benefit that nobody who is able to read would dream of undervaluing. It is not simply a benefit of economic value leading to enhanced employment prospects, although it certainly is that. It is a benefit that transforms the whole quality of life of the person who acquires it.

    68.  But although the deprivation of the benefit of literacy may, if brought about by a breach of duty, entitle the victim to general damages it does not, to my mind, fit comfortably within the concept of a "personal injury". It is not, in my view, in itself an impairment of a physical or mental state. The alleged consequences of the deprivation, however, ie "panic attacks", "social phobia" and "depression", might well be regarded as impairments of the mental state of the sufferer.

    69.  There is some authority on this point. In Anderton v Clwyd County Council (reported as Phelps v Hillingdon London Borough Council [2001] 2 AC 619) this House had to consider whether pre-action discovery could be claimed pursuant to section 33(2) of the Supreme Court Act 1981. The section has since been amended but at that time pre-action discovery could only be sought by a person likely to be a party to proceedings in which "a claim in respect of personal injuries to a person … is likely to be made" (section 33(2)). Section 35(5) of the Act said that "personal injuries" included "…any impairment of a person's physical or mental condition", a definition identical to that in section 38(1) of the Limitation Act 1980. The potential claimant in Anderton was dyslexic. Her problem had not been diagnosed while she was at school and consequently no remedial teaching had been provided. She said that this had led to psychological problems. This House, disagreeing with the Court of Appeal, took the view that her proposed claim was a claim for "personal injuries". Lord Slynn of Hadley [2001] 2 AC 619, 664 said that it would be wrong to adopt an over-legalistic view of what were "personal injuries" and:

"… a failure to mitigate the adverse consequences of a congenital defect is capable of being 'personal injuries to a person' within the meaning of the rules".

    70.  If the proposed claim in Anderton was a "personal injuries" claim then so too must the respondent's claim in the present case be, or at least include, a "personal injuries" claim. The first issue must be decided in favour of the respondent.

    71.  As to the second issue, the proper approach to section 14(3) of the 1980 Act, I, like my noble and learned friend Lord Hoffmann, prefer the reasoning of Stuart-Smith and Evans LJJ in Forbes v Wandsworth Health Authority [1997] QB 402 to that to be found in Nash v Eli Lilly & Co [1993] 1 WLR 782. The reference in section 14(3) to "knowledge which he might reasonably have been expected to acquire" should, in my opinion, be taken to be a reference to knowledge which a person in the situation of the claimant, ie an adult who knows he is illiterate, could reasonably be expected to acquire. Personal characteristics such as shyness and embarrassment, which may have inhibited the claimant from seeking advice about his illiteracy problems but which would not be expected to have inhibited others with a like disability, should be left out of the equation. It is the norms of behaviour of persons in the situation of the claimant that should be the test.

    72.  One of the problems in the present case is that, for entirely understandable reasons, the Limitation Act issue was directed to be dealt with as a preliminary point. As Lord Hoffmann has noted (para 50 of his opinion), there was no evidence before the court justifying the conclusion that Mr Adams' inhibitions, to which his failure to disclose to his medical adviser his illiteracy problem was attributed, were inhibitions which other people with that problem would be expected to share. My own, non-expert, inclination would be to think that a person of average intelligence (Mr Adams was rated as above average intelligence) who knew himself to be illiterate, knew that his illiteracy was at the back of problems such as stress, depression etc and who consulted a doctor about those problems, could reasonably be expected to inform the doctor about the illiteracy. Expert evidence to the contrary could lead to a different conclusion but in the present case there has been no evidence to the contrary.

    73.  My noble and learned friend Baroness Hale of Richmond has referred in her opinion (para 83) to the Law Commission's conclusion in paragraph 12.54 of their Consultation Paper on Limitation of Actions (LCCP 151, 1998) that it would be "fairer to plaintiffs … that the test for constructive knowledge should contain a large subjective element". My Lords, that might well be so. But it would be fairer to defendants that the test should be mainly objective. Statutory provision for constructive knowledge in the context of limitation of actions must strike a balance between the interests of claimants and those of defendants. There may seem to be an unfairness to claimants in banning them on lapse of time grounds from bringing actions that they did not know they could bring. But there is also an unfairness to defendants in allowing actions to be brought after a lapse of time that has seriously prejudiced their ability to refute the claims made against them and for which they are in no way responsible. In my opinion, the approach to section 14(3) constructive knowledge should be mainly objective. What would a reasonable person placed in the situation in which the claimant was placed have said or done? If the result of applying the mainly objective test would seem unfair to a particular claimant, the issue of fairness, as between claimant and defendant, can be considered under section 33. That is the third issue.