Adams (FC) (Respondent) v. Bracknell Forest Borough Council (Appellants)
74. For the reasons given by Lord Hoffmann in paragraph 55 of his opinion, I, too, conclude that the balance of fairness tilts against allowing this action to proceed. I agree, therefore, that the appeal should be allowed and the action dismissed.
LORD WALKER OF GESTINGTHORPE
75. I have had the great advantage of reading in draft the opinions of my noble and learned friends Lord Hoffmann and Baroness Hale of Richmond. So far as there is no conflict between their opinions, I respectfully agree with both.
76. On the point on which Baroness Hale takes a rather different approach, I think that her review of the Law Commission's deliberations in this field, and of the changes made by the Latent Damage Act 1986, shows that the law has still not (despite the best efforts of the Law Commission) achieved a wholly coherent state. I agree with Lord Hoffmann that it is no longer possible to state roundly (as Lord Reid did in Smith v Central Asbestos Co Ltd  AC 518, 530) that the "test is subjective". The courts have moved towards a more objective approach, and in my opinion they are right to have done so.
77. But it is not contended by either side that the correct test is either wholly subjective or wholly objective. The distinction between circumstances and personal characteristics is intelligible and helpful in many cases, but there are bound to be some in which the distinction is elided (an extreme example being a claimant who has suffered serious head injuries raising an issue as to whether he has legal capacity either to commence or to compromise legal proceedings on his own: see Masterman-Lister v Brutton & Co  1 WLR 1511). Baroness Hale's distinction between personal characteristics which affect a person's ability to acquire information and those which affect a person's reaction to the information once acquired is a distinction which will be useful in some cases. But characteristics such as shyness, embarrassment and lack of assertiveness (which feature in several of the reported cases) may be relevant both to the acquisition of information and to acting (or failing to act) on it.
78. I would therefore be cautious about any simple formula put forward to cover every case which might occur. On the facts of this case (in agreement with Lord Hoffmann) I consider that section 14(3) of the Limitation Act 1980 required the court to assume that a claimant in the respondent's position, suffering from the disability and the resultant misery which he said he had suffered, would have sought medical advice much sooner.
79. I would therefore allow the appeal.
BARONESS HALE OF RICHMOND
80. I entirely agree, for the reasons given by my noble and learned friend, Lord Hoffmann, that this is a 'personal injury' within the meaning of section 38(1) of the Limitation Act 1980. It is an impairment of the claimant's mental condition which may sound in damages for loss of amenity even if the major part of any claim would be for any resulting financial loss. It is, as Mr Faulks QC acknowledged, in everyone's interests that there be clarity about the classification of these claims, even if he would have preferred a different one.
81. I take a slightly different view, however, on the 'date of knowledge' and in particular the test for imputed or constructive knowledge under section 14(3) of the 1980 Act (the text of which is set out by Lord Hoffmann at paragraph 21 earlier). It is obviously possible to read section 14(3) in two different ways because highly experienced judges sitting in different constitutions of the Court of Appeal have done so. In Nash v Eli Lilly & Co  1 WLR 782, a court consisting of Purchas LJ, Ralph Gibson LJ and Mann LJ, in a judgment given by Purchas LJ, held that the standard of reasonableness had to take into account, not only the position, situation and circumstances of the claimant, but also her character and intelligence. In Forbes v Wandsworth Health Authority  QB 402, Roch LJ considered himself bound to follow the same approach. Stuart-Smith and Evans LJJ applied a more stringent test, in which the personal characteristics of the claimant were to be disregarded, although the question was what he should reasonably have done when placed in the situation in which he found himself. In Smith v Leicester Health Authority  Lloyd's LR (Med) 77, a court consisting of Roch LJ, Mantell LJ and Sir Patrick Russell, in a judgment given by Roch LJ, resolved the difference in favour of the Forbes test: 'what would the reasonable person have done placed in the situation of the plaintiff?' The court (p 86) accepted that her 'individual characteristics which might distinguish her from the reasonable woman should be disregarded.' In O'Driscoll v Dudley Health Authority  Lloyd's LR (Med) 210, decided three months later, Simon Brown LJ and Sir Christopher Slade found it unnecessary to express a view on constructive knowledge, but Otton LJ would have found that the claimant had such knowledge whichever test was applied. And in Fenech v East London and City Health Authority  Lloyd's Rep Med 35, Simon Brown LJ, with whom Robert Walker LJ and Wilson J agreed, found it unnecessary to attempt any final reconciliation, because 'on any sort of objective approach' the claimant should have made inquiries long before she did. But he did point out that in Ali v Courtaulds Textiles Ltd  Lloyd's Rep Med 301, at 305, where Henry LJ had quoted the observation in Nash that the 'span of reasonable inquiry will depend on the factual context of the case and the subjective characteristics of the individual plaintiff involved', the court had not been referred to Forbes. It has rarely, if ever, been necessary to resolve the difference in order to decide the case.
82. In addition to the reasons given by Stuart-Smith LJ and Evans LJ for preferring the more objective approach, quoted by Lord Hoffmann in paragraphs 43 and 44 earlier, is the reason given by Colman J in Parry v Clwyd Health Authority  PIQR P1, P10:
83. The Law Commission, in their Consultation Paper on Limitation of Actions (LCCP 151, 1998), pointed to the lack of consistency in the courts' interpretation of section 14(3). They cited law reform bodies in New Zealand, Ontario and Western Australia which had favoured the more subjective view. They concluded at paragraph 12.54:
84. This provisional view should, however, be seen in the context of the core scheme then recommended by the Commission. This would have imposed a single three year time limit from the 'date of discoverability', subject to a long-stop deadline from the date on which the cause of action accrued. Crucially, there would have been no equivalent to the discretion currently given by section 33 of the 1980 Act to disapply the limitation period altogether in personal injury cases. The complexities and fine distinctions involved in applying the two different provisions, referred to more recently by the Court of Appeal in KR and others v Bryn Alyn Community (Holdings) Ltd  EWCA Civ 85,  QB 1441, at paragraph 18, would have been avoided. In that context, a more generous approach to discoverability is entirely understandable, perhaps necessary.
85. In their Report on Limitation of Actions (Law Com No 270, 2001) the Law Commission adhered to their provisional view that the claimant should be considered to have constructive knowledge of the relevant facts when the claimant in his or her circumstances with his or her abilities ought reasonably to have known of them (paragraph 3.50). This had been supported by the majority of respondents to the consultation paper. However, the Commission had been persuaded both to abandon any long-stop (paragraph 3.107) and to retain a discretion to disapply the limitation period (paragraph 3.169) in personal injury cases. Some personal injury cases, in particular those involving childhood abuse, present particular difficulties for any limitation regime. It may be difficult to discover whether or not there were initial actionable injuries, still less whether they were 'significant' for the purpose of section 14(1). The real complaint is about the longer term psychiatric and economic sequelae, which may not emerge until many years later. Even if there was significant injury at the time, the effects of the abuse may be such that the claimant is unable to contemplate taking action until years later. The Commission were concerned that their proposals would not operate fairly for all sexual abuse claimants unless there was a discretion (paragraph 3.162). They considered, however, that with a more subjective approach to discoverability, it would only be in the most exceptional cases that a court would be justified in allowing the claimant more time. This had been the expectation of the Law Reform Committee when it first recommended the discretion, but it was not borne out by events.
86. The Government has indicated that it accepts the Law Commission's recommendations in principle, although it will give further consideration to some aspects with a view to bringing forward legislation when a suitable opportunity arises (see Law Commission, Annual Report 2002/2003 (Law Com No 280) 2003, paragraph 3.14). This history does suggest that the policy considerations which weighed with the majority in Forbes have not weighed so heavily elsewhere.
87. There is a related difficulty. Wording virtually identical to that in section 14(3) also appears in section 14A(10), dealing with constructive knowledge in negligence claims for latent damage or other economic loss not involving personal injuries. There is no equivalent to the section 33 discretion for such claims, although there is an overriding time limit provided by section 14B. Both features would support the more generous approach to constructive knowledge. In Coban v Allen  8 Med LR 316, the Court of Appeal applied the Nash test to section 14A(10). The case involved a personal attribute, in that the claimant's explanation for not pursuing inquiries with his solicitor was that he was an over-stayer who feared deportation. The court nonetheless held that, having good reason to make such inquiries, it was reasonable for him to do so despite his immigration status. Later cases under section 14A(10) have not referred to the Forbes/Nash distinction at all but have had little difficulty in deciding whether or not the claimant could reasonably have been expected to make earlier enquiries: see eg Webster v Cooper & Burnett  PNLR 240, CA; Mortgage Corporation v Lambert & Co  PNLR 820, CA; Glaister v Greenwood  PNLR 602, Collins J. Clearly, the approach under both provisions should be the same, as should the approach between the two parts of section 14(3) and 14A(10) - to what the claimant could have discovered for himself and what he could have discovered with professional help.
88. I wonder, therefore, how much difference there is in practice between the two approaches. We are not here concerned with knowledge that the claimant might reasonably have been expected to acquire from facts observable or ascertainable by him. We are concerned with knowledge he might reasonably be expected to acquire with the help of medical or other advice which it is reasonable for him to seek. The question is when is it reasonable to expect a potential claimant to seek such advice? Objectively it will be reasonable to seek such advice when he has good reason to do so. This will depend upon the situation in which the claimant finds himself, which includes the consequences of the accident, illness or other injury which he has suffered. Rarely, if ever, will it depend upon his personal characteristics. If, faced with a situation in which it is reasonable to seek advice, a person fails to do so, then the fact that he was reluctant to make a fuss, or embarrassed to talk to his doctor, while understandable, does not take him outside the subsection.
89. Mr Forbes was faced with the amputation of his leg after an unsuccessful bypass operation. This was clearly a significant and unexpected injury connected with the medical treatment he had been receiving. It is not clear why he took no further action at the time, although he only did so reluctantly later. But it was reasonable to expect him to seek a second opinion then and there. Mrs Fenech was faced with years of pain after giving birth to her first child, when she was told that the needle used to stitch up an episiotomy had broken. She was embarrassed to talk about these matters, even to her doctor. But of course it was reasonable to expect her to do so. In contrast, Miss Smith underwent numerous operations during her childhood because of her spina bifida, one of which resulted in her becoming tetraplegic. There was no reason for her to think that this was anything other than the consequence of her disability (another example is Mellors v Perry  EWCA Civ 89, where the claimant had endured a childhood of renal problems with three kidney transplants but had no reason think that this was anything other than the consequence of her congenital disability).
90. In cases of educational failure (like the present) or child care failure (as in Barrett v Enfield London Borough Council  2 AC 550), there may be no dramatic trigger such as an amputation. But there will often be enough in what the claimant does know to make it reasonable for that claimant to make further enquiries. This case is a good example. Mr Adams knew that he was experiencing serious problems in his life as a result of his difficulties with reading and writing. He felt himself to be of normal intelligence. He knew that his education had not equipped him with reading and writing skills commensurate with his intelligence. He was consulting his doctor about his problems, yet he did not tell his doctor about his difficulties with reading and writing. He clearly had good reason to seek such advice yet he failed to do so: he 'did not want to go there'. On the test proposed by the Law Commission, section 14(3) would have applied to him.
91. In my view, all the cases to which we have been referred are explicable on the basis that the law expects people to make such inquiries or seek such professional advice as they reasonably can when they have good reason to do so. Their motive for not doing so will generally be irrelevant. But I would not want to rule out that their personal characteristics may be relevant to what knowledge can be imputed to them under section 14(3). There is a distinction between those personal characteristics which affect the ability to acquire information and those which affect one's reaction to what one does know. A blind man cannot be expected to observe things around him, but he may sometimes be expected to ask questions. It will all depend upon the circumstances in which he finds himself. As McGee and Scanlan have suggested, in an attempt to reconcile the authorities, a factor or attribute which is connected with the ability of a claimant to discover facts which are relevant to an action should be taken into account; but a factor in his make-up which has no discernible effect upon his ability to discover relevant facts should be disregarded: see "Constructive knowledge within the Limitation Act" (2003) 22 Civil Justice Quarterly 248, at 260. They go on to suggest that qualifications, training and experience may have such an effect, while intelligence may not. It will all depend upon the facts of the case.