Ipsofactoj.com: International Cases [2005] Part 9 Case 1 [HL]


HOUSE OF LORDS

Coram

Bracknell Forest

Borough Council

- vs -

Adams

LORD HOFFMANN

LORD PHILIPS OF WORTH MATRAVERS

LORD SCOTT OF FOSCOTE

LORD WALKER OF GESTINGTHORPE

BARONESS HALE OF RICHMOND

17 JUNE 2004


Judgment

Lord Hoffmann

My Lords,

THE CLAIM

  1. The plaintiff Mr. Adams issued proceedings on 25 June 2002 against the Bracknell Forest Borough Council claiming damages for negligence in failing to provide him with a suitable education. The claim is based upon the alleged neglect of the council properly to assess the educational difficulties he was experiencing at its schools which he attended between 1981 and 1988 and to provide him with appropriate treatment. He alleges that an assessment would have revealed that he suffered from dyslexia and the treatment would have ameliorated the consequences of that condition. As it is, his literacy skills are less than they should have been and he has been disadvantaged in the employment market. He also suffers from disabling psychological syndromes such as depression, panic and lack of self-esteem.

  2. Dyslexia or "special learning difficulty" is a congenital condition, presumably neurological. As in the case of many brain functions, the mechanism remains unknown. Its distinctive feature is the combination of average or better general mental ability with severe and long-term difficulty in reading, writing and spelling. It is not curable but in some cases suitable teaching can develop techniques to mitigate its effects.

    THE LIMITATION PERIOD

  3. Mr. Adams became of full age on 13 March 1990. The action was commenced more than 12 years later. His educational records at the school were destroyed when he turned 21. One of the teachers thinks that Mr. Adams was referred to an educational psychologist but there are no surviving notes. Some of the teachers remember that he had learning difficulties which were addressed by remedial teaching but there is nothing very specific about what form this took. The council would be in very considerable difficulties in defending the claim.

  4. The council has pleaded that the claim was statute-barred under section 11 of the Limitation Act 1980 which provides a special three year time limit for actions which claim damages for personal injury. (The normal time for actions in tort is six years). Time runs from the date on which the action accrued or the "date of knowledge", whichever is the later. I shall return later to what is meant by the "date of knowledge", an expression defined in section 14, because the essence of the council's case is that the action is barred because the date of knowledge was before 25 June 1999.

  5. The judge (His Honour Judge Vincent, in the Torquay and Newton Abbot County Court) tried the question of the date of knowledge as a preliminary issue. He held that it was not before 19 November 1999. This decision was upheld by the Court of Appeal (Peter Gibson, Tuckey and Keene LJJ). The council appeals to your Lordships' House.

  6. The case was argued before the judge and the Court of Appeal on the basis that the claim was for damages for personal injury and that it therefore came within section 11 of the 1980 Act. That was because the Court of Appeal had so decided in respect of a similar claim in Robinson v St Helens Metropolitan Borough Council [2003] PIQR P128. But Mr. Faulks QC for the council raised the question of whether Robinson was rightly decided.

    WHAT IS THE CLAIM FOR?

  7. An action for negligence against a local education authority for educational neglect is a new development. It was only in a trio of cases (E (A Minor) v Dorset County Council; Christmas v Hampshire County Council and Keating v Bromley London Borough Council) which are reported under the name X (Minors) v Bedfordshire County Council [1995] 2 AC 633 (that being the name of another appeal which was heard at the same time) that the possibility of such an action was acknowledged. The appeals were against orders striking out the proceedings as disclosing no cause of action. In the Court of Appeal Sir Thomas Bingham MR. said (at p 703) that although he would not go so far as to hold that the education authorities owed the plaintiffs a duty of care, he was equally not willing to say that the claims were "unarguable or almost incontestably bad". The House of Lords agreed: see Lord Browne-Wilkinson at pp 762-771. The actions were reinstated.

  8. Because the question was whether a duty of care could exist at all, neither the Court of Appeal nor the House of Lords gave a great deal of attention to nature of the injury for which damages might be recoverable. Sir Thomas Bingham MR. made brief reference to recoverable damage at p 703, saying that certain consequences of a negligent failure to provide suitable educational treatment were not compensatable in damages: for example, distress or feeling shy and diffident. But, he said:

    If .... a plaintiff can show

    (1)

    that the adverse consequences of his congenital defect could have been mitigated by early diagnosis of the defect and appropriate treatment or educational provision;

    (2)

    that the adverse consequences of his congenital defect were not mitigated because early diagnosis was not made, or appropriate treatment not given or provision not made, with resulting detriment to his level of educational attainment and employability; and

    (3)

    that this damage is not too remote, I do not regard the claim for damage to be necessarily bad.

  9. Evans LJ likewise rejected an argument that the plaintiffs' learning difficulties and behavioural problems were not injuries for which damages could be awarded. He drew an analogy with a physical injury for which the school was not responsible but which it negligently failed to notice or treat. Damages would be recoverable for "the consequences of delay in obtaining proper treatment" (p 706). It would not matter that the persistent learning difficulties were the result of an existing condition. The question was whether they could have been ameliorated by earlier diagnosis and treatment.

  10. It seems to me that both Sir Thomas Bingham MR. and Evans LJ were treating the claim as being for a mental disability (not being able to read and write properly) which ought to have been ameliorated but was allowed to persist. Such a claim in a post-Cartesian world is for personal injury and gives rise to a claim for general damages and, by way of special damages, any consequent economic loss such as loss of earnings or the need to pay for remedial treatment. Sir Thomas Bingham MR. specifically said (at p 703) that fees paid for remedial teaching were in principle recoverable.

  11. In Phelps v Hillingdon London Borough Council [1998] ELR 38 an action for educational neglect went to trial. Garland J held that an educational psychologist employed by the local education authority had been negligent in failing to diagnose the plaintiff's dyslexia. He referred to the passages from the judgments of Sir Thomas Bingham MR. and Evans LJ in the X (Minors) case which I have mentioned and awarded general and special damages. The general damages included "loss of congenial employment" and the special damages were the cost of remedial tuition and an "extremely modest" (£25,000) award for loss of future earnings.

  12. This decision was however reversed by the Court of Appeal [1999] 1 WLR 500. Stuart-Smith LJ (at p 513) disagreed with the analogy which, in the X (Minors) case, Evans LJ had drawn with an untreated physical injury: in his view, "dyslexia is not itself an injury and I do not see how failure to ameliorate or mitigate its effects can be an injury." What might be recoverable was economic loss on the basis that the educational psychologist had assumed responsibility to take reasonable care to diagnose the problem: compare Henderson v Merrett Syndicates Ltd [1995] 2 AC 145.

  13. On the same day as the Court of Appeal gave judgment in Phelps, it decided Anderton v Clwyd County Council [1999] ELR 1. This raised the question of whether a claim based on failure to diagnose dyslexia was a "claim in respect of personal injuries" within the meaning of section 33(2) of the Supreme Court Act 1981, so as to give the court jurisdiction to order discovery before the commencement of the action. The same constitution of the Court of Appeal held that as failure to diagnose dyslexia did not exacerbate the condition and no recognised psychiatric injury was alleged, there was no claim for personal injury.

  14. Both Phelps and Anderton were appealed to the House of Lords and heard together. In Phelps Lord Slynn of Hadley said [2001] 2 AC 619, 654 that psychological injury could constitute damage for the purposes of a claim in negligence and:

    so .... can a failure to diagnose a congenital condition and to take appropriate action as a result of which failure a child's level of achievement is reduced, which leads to loss of employment and wages.

  15. When he came to deal with Anderton he said, at p 664:

    For the reasons given in my opinion in the Phelps case, psychological damage and a failure to diagnose a congenital condition and to take appropriate action as a result of which a child's level of achievement is reduced (which leads to loss of employment and wages) may constitute damage for the purpose of a claim. Accordingly, I consider that Garland J in the Phelps case was right in the passage which I have just quoted and that 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.

  16. On Phelps, Lord Clyde said, at p 670:

    while the injury which is alleged to have occurred is principally a loss or at least a retardation of their educational progress with such consequential financial loss and expense as that may entail, it may also involve some form of mental or psychological injury. The loss claimed may be purely of an economic character. But the mental or psychological effects of negligent advice may in themselves be able to constitute a proper head of damages, such as a post-traumatic stress disorder or a psychological illness. Dyslexia is a condition which may in itself become worse through the absence of an appropriate educational regime, and the frustration of an inappropriate regime may cause psychological stress and injury.

  17. He also agreed with Lord Slynn of Hadley on the disposal of Anderton. The other members of the House agreed with both Lord Slynn of Hadley and Lord Clyde.

  18. The outcome of the Phelps appeal was that the whole of the order of Garland J, including the awards of special and general damages, was restored. In my opinion the award of general damages can be justified only on the basis that the claim was for a personal injury consisting in the lack of ability to read and write. It also seems to me that although strictly speaking the Anderton case decides only that the claim was for personal injury within the meaning of section 33(2) of the Supreme Court Act 1981, the reasoning is equally applicable to section 11 of the Limitation Act 1980, which by section 38(1) defines "personal injuries" as including "any disease and any impairment of a person's physical or mental condition."

  19. In Robinson v St Helens Metropolitan Borough Council [2003] PIQR P128 Sir Murray Stuart-Smith examined the authorities to which I have referred and drew the following conclusion, at p 136:

    Dyslexia .... may itself be an 'impairment of a person's mental condition'. It is not of course caused by the defendant; but negligent failure to ameliorate the consequences of dyslexia by appropriate teaching may be said to continue the injury, in the same way that the negligent failure to cure or ameliorate a congenital physical condition so that it continues, could give rise to an action for personal injuries. Although as I understand it dyslexia cannot be cured, a dyslexic person can be trained to overcome the difficulties in reading and writing which he experiences.

  20. In my opinion this summary of the effect of the cases is correct. But on what basis can the lack of the ability to read and write be a personal injury? We know very little about the way the brain works. Some mental disabilities are caused by congenital and irremediable defects in the brain circuitry. But the brain has the most remarkable capacity to compensate for defects or injuries by calling upon other parts of the circuitry. Compare, for example, the recoveries people make from strokes which have irreversibly damaged parts of the brain. Such people, with the aid of physiotherapy and other treatment, appear to get better. Other parts of the brain acquire the ability to do the work of the damaged tissue. It seems to me that Evans LJ was quite right to draw an analogy with negligent failure to treat a physical injury which the defendant did not itself cause. It would be drawing too fine a distinction to say that the neglect caused no injury because nothing could be done to repair the congenital damage in the brain circuitry and the other parts of the brain which would have to be trained to compensate had never been injured. What matters is whether one has improved one's ability to read and write. Treating the inability to do so as an untreated injury originally proceeding from other causes produces a sensible practical result.

    THE DATE OF KNOWLEDGE

  21. We are therefore concerned with the limitation period for a claim for personal injury and principally with the date of knowledge as defined in section 14 of the 1980 Act:

    (1)

    .... references to a person's date of knowledge are references to the date on which he first had knowledge of the following facts—

    (a)

    that the injury in question was significant; and

    (b)

    that the injury was attributable in whole or in part to the act or omission which is alleged to constitute negligence, nuisance or breach of duty; and

    (c)

    the identity of the defendant ....

    (3)

    For the purposes of this section a person's knowledge includes knowledge which he might reasonably have been expected to acquire—

    (a)

    from facts observable or ascertainable by him; or

    (b)

    from facts ascertainable by him with the help of medical or other appropriate expert advice which it is reasonable for him to seek;

    but a person shall not be fixed under this subsection with knowledge of a fact ascertainable only with the help of expert advice so long as he has taken all reasonable steps to obtain (and, where appropriate, to act on) that advice.

  22. The court has in addition a discretion under section 33 to disapply the limitation period if it appears that it would be equitable to do so. As both the judge and the Court of Appeal were of opinion that the action had been commenced within the limitation period, they did not have to consider the discretion, although the Court of Appeal expressed a view on how they would have exercised the discretion if called upon to do so.

    TRIAL OF THE PRELIMINARY ISSUE

  23. The judge tried the question of the date of knowledge as a preliminary issue because a decision in favour of the council would (subject to the discretion under section 33) have put an end to the proceedings and saved costs. Allegations of educational neglect are expensive to investigate and in Phelps [2001] 2 AC 619, 667 Lord Nicholls of Birkenhead said that:

    The courts, with their enhanced powers of case-management, must seek to evolve means of weeding out obviously hopeless claims as expeditiously as is consistent with the court having a sufficiently full factual picture of all the circumstances of the case.

  24. The trial of the preliminary issue was a response to this exhortation. The parties are to be encouraged to try to shorten the proceedings in this way but they may need to give careful thought to the consequences which the judge's findings may have upon the later stages of the trial. If, as appears to have been the intention here, the parties intend that the only finding which will be res judicata is the date of knowledge and that findings of fact incidental to that determination are to be open to reconsideration on further evidence at the merits stage of the trial, that should be made clear: compare the remarks of Brooke LJ in Robinson v St Helens Metropolitan Borough Council [2003] PIQR P128, P142.

  25. The judge received witness statements from Mr. Adams and his friend Ms Monica Harding, an educational psychologist who had met him through a shared interest in salsa dancing. It was she who first suggested to him on 19 November 1999 that he might be suffering from dyslexia. Both were cross-examined. In addition, there was a statement from the council's solicitor which exhibited a number of statements containing such information as the council had been able to gather about Mr. Adams's time at school and a report from Dr Peter Gardner, a well known expert on dyslexia. He did not give oral evidence.

  26. Mr. Adams described how he had spoken to Ms Harding, with whom he had previously been acquainted ("our paths had crossed") at a salsa party on 19 November 1999. He was feeling depressed because he was having difficulty in coping with the paper work involved with a carpentry course he was doing. "I then went on to describe all the problems I had previously had during my working life ...." Ms Harding told him that she thought he was dyslexic. As a result, he went to see a solicitor on 12 January 2000 and the solicitor obtained legal aid on 15 March. An appointment was arranged with Dr Gardner, who prepared a report.

  27. Dr Gardner reported that Mr. Adams was of average intellectual ability; more intellectually able than 65% of his age group peers. On the other hand, he suffered from severe dyslexia (5 on a scale of 1 to 6). He exhibited significant difficulties with depression, phobic symptoms and, to a lesser extent, obsessional symptoms. The scale of stress which he described himself as suffering was greater than 91% of adults. His personal self-esteem was low. He was prone abruptly to develop palpitations, pounding heart or accelerated heart rate, sweating, chest pain or discomfort and chills or hot flushes, which qualified for the diagnosis of liability to panic attacks. He said that he displayed all the symptoms of social phobia: marked or persistent fear of being exposed to unfamiliar people, causing anxiety and panic attacks, which he either avoided or endured with intense anxiety or distress. He also suffered from depression, evidenced by daily psychomotor agitation or retardation, fatigue or loss of energy, feelings of worthlessness or excessive or inappropriate guilt, diminished ability to think or concentrate or indecisiveness and recurrent thoughts of death or thoughts of suicide, all of which caused clinically significant distress or impairment in social, occupational or other important areas of functioning. Dr Gardner said that these psychological/psychiatric syndromes were a consequence of his undiagnosed and untreated learning difficulties.

  28. Mr. Adams said in evidence that he had not sought any advice about the literacy problems which were causing his distress because he wanted to hide them. He did not want people to think he was stupid. He went to the doctor about a variety of complaints over the years but never mentioned it. He said that he had heard of dyslexia and knew that it concerned people who had problems with writing. But he did not investigate his own problem because "I didn't want to go there." He spoke to the doctor about feeling unhappy and stressed and other personal problems ("just ended abusive relationship", noted the doctor in 1998) but not that their cause was inability to read and write. Nor did he mention it to anyone else. On the other hand, on a social occasion on 19 November 1999 he spilled out the entire story to Ms Harding, a lady nearly 20 years his senior whom he says he hardly knew and had no reason to believe had any expertise in the matter. After talking to her, the first thing he did was to consult a solicitor.

    THE FINDINGS OF FACT

  29. The judge found that although Mr. Adams had known since childhood that he had psychological problems and that they were "linked in some way to his problems with reading and writing", he did not know that they were attributable to the council in the sense that he had a condition which had been capable of being addressed or managed and that the council had not done so. He therefore did not have actual knowledge which satisfied section 14(1)(b): "that the injury was attributable in whole or in part to the act or omission which is alleged to constitute negligence". This finding was unsuccessfully challenged in the Court of Appeal but the challenge has not been pursued before your Lordships' House.

  30. The judge then dealt with whether Mr. Adams had constructive knowledge under section 14(3). As an adult, he had plenty of time to seek help and investigate the problem but he did not. But the judge held that he did not have constructive knowledge either:

    He gave me a cogent explanation for his failure, namely the fact that people with his disability develop coping strategies to mitigate its effect and find the idea of disclosing the inability to properly read and write humiliating. This is, in my judgment, an entirely natural and reasonable consequence of having this type of learning disability which has not been properly addressed. You do not have to be shy to experience this reluctance to talk to people and disclose your inabilities. So I consider that a reasonable person with his unaddressed dyslexia would be unlikely to have sought help or to have put two and two together and seen the glimmerings of a claim against the defendant. The fact that the claimant could discuss feelings of stress with his GP, as is evidenced by his medical records, is a very different matter. Inability to properly read and write and the emotions that that engenders would not be seen by the reasonable undiagnosed dyslexic as medical concerns for a GP in any event, in my judgment.

  31. In the Court of Appeal, Tuckey LJ accepted this opinion of what the reasonable dyslexic would have done. He said, at para 25:

    The judge's essential finding in this case was that a reasonable person with the claimant's unaddressed dyslexia would be unlikely to have sought help or to have put two and two together and seen the glimmerings of a claim against the defendant. So his state of knowledge was not such as to give him an informed choice between accepting things as they were and getting on with his life or seeking advice to give him the required knowledge.

  32. He went on however to say, at para 26:

    It does not, I think, follow 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.

    TEST FOR CONSTRUCTIVE KNOWLEDGE

  33. Section 14(3) uses the word "reasonable" three times. The word is generally used in the law to import an objective standard, as in "the reasonable man". But the degree of objectivity may vary according to the assumptions which are made about the person whose conduct is in question. Thus reasonable behaviour on the part someone who is assumed simply to be a normal adult will be different from the reasonable behaviour which can be expected when the person is assumed to be a normal young child or a person with a more specific set of personal characteristics. The breadth of the appropriate assumptions and the degree to which they reflect the actual situation and characteristics of the person in question will depend upon the reasons why the law imports an objective standard.

  34. Section 14(3) has something of a history. Until the Limitation Act 1963, time ran from the date on which the cause of action accrued. If it accrued before the injured person knew or could have known about it, that was his hard luck: Cartledge v E Jopling & Sons Ltd [1963] AC 758. The 1963 Act allowed the limitation period to be extended in claims for damages for personal injury for the period during which the material facts had been outside the actual or constructive knowledge of the plaintiff. Section 7(5) defined what it meant to say that a fact was outside the plaintiff's constructive knowledge:

    (b)

    in so far as that fact was capable of being ascertained by him, he had taken all such action (if any) as it was reasonable for him to have taken .... for the purposes of ascertaining it; and

    (c)

    in so far as there existed, and were known to him, circumstances from which, with appropriate advice, that fact might have been ascertained or inferred, he had taken all such action (if any) as it was reasonable for him to have taken before that time for the purpose of obtaining appropriate advice with respect to those circumstances.

  35. In Newton v Cammell Laird & Co (Shipbuilders and Engineers) Ltd [1969] 1 WLR 415, 419 Lord Denning MR. explained how this test should be applied:

    You have to ask yourself: At what date was it reasonable for him - for the sick man himself - to have taken advice and found out that his illness was due to his employer's negligence or breach of duty. You do not ask: At what date would a reasonable person have taken advice. You ask: At what date was it reasonable for this man to take it? In other words, at what date ought he to have taken advice and found out that he had a worthwhile action?

  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.

    CONSTRUCTIVE KNOWLEDGE IN THIS CASE

  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.

    SECTION 33

  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 Philips 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 (para 2 of the particulars of claim):

    to use reasonable professional skill and care to educate [him] and in doing so to assess and treat his educational needs and problems.

    He says that they were in breach of that duty (para 7 of the particulars of claim):

    in that they failed to identify [his] special learning difficulty, namely, dyslexia and failed to use appropriate teaching to ameliorate his difficulties

    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, i.e. "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.

    THE SECOND ISSUE

  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, i.e. 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.

    THE THIRD ISSUE

  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

    My Lords,

  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 [1973] 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 [2003] 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

    My Lords,

  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 [1993] 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 [1997] 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 [1998] 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 [1998] 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 [2000] 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 [1999] 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 [1997] PIQR P1, P10:

    If the purpose of section 14(3) is to create deemed or constructive knowledge in circumstances where there is no actual knowledge, it is highly improbable that Parliament intended that the application of that subsection should be qualified by taking into account the very characteristic of the plaintiff by reason of which he failed to appreciate the subsection (1) facts known to him and therefore to acquire actual knowledge. For these reasons it would seem that, as a matter of principle, the criteria relevant for the purpose of applying the reasonableness test under subsection (3) should be exclusively objective.

  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:

    As it is fairer to plaintiffs and would not create significant extra uncertainty, we also consider that the test for constructive knowledge should contain a large subjective element: what ought the plaintiff, in his circumstances and with his abilities, to have known had he acted reasonably? The question should not be what a reasonable person would have discovered, but what the plaintiff himself would have discovered if he had acted reasonably. The personal characteristics of the plaintiff, such as his or her level of education and intelligence, and the plaintiff's resources, would therefore be relevant to the question whether the plaintiff acted reasonably .... A number of the employment-related personal injuries cases have involved plaintiffs in unskilled manual jobs having little education .... Conversely, in cases where the plaintiff has some degree of expert knowledge which should have caused him to appreciate facts at an earlier stage than would have been appropriate for the average person, that knowledge should be taken into account to advance the date of discoverability.

  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 v Bryn Alyn Community (Holdings) Ltd [2003] EWCA Civ 85, [2003] 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 [1997] 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 e.g. Webster v Cooper & Burnett [2000] PNLR 240, CA; Mortgage Corporation v Lambert & Co [2000] PNLR 820, CA; Glaister v Greenwood [2001] 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 [2003] 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 [2001] 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.

  92. For those reasons, while I take a slightly different approach on the test for imputed knowledge, I reach the same conclusion on the facts. The claimant should have sought professional help long before he did. I also share the view that this is not an appropriate case in which to exercise the section 33 discretion in the claimant's favour, for the reasons given by my noble and learned friend, Lord Hoffmann. Accordingly, I too would allow this appeal.


Cases

Robinson v St Helens Metropolitan Borough Council [2003] PIQR P128; X (Minors) v Bedfordshire County Council [1995] 2 AC 633; Phelps v Hillingdon London Borough Council [1998] ELR 38; Phelps v Hillingdon London Borough Council [2001] 2 AC 619; Henderson v Merrett Syndicates Ltd [1995] 2 AC 145; Anderton v Clwyd County Council [1999] ELR 1; Cartledge v E Jopling & Sons Ltd [1963] AC 758; Newton v Cammell Laird & Co (Shipbuilders and Engineers) Ltd [1969] 1 WLR 415; Smith v Central Asbestos Co Ltd [1972] 1 QB 244; Smith v Central Asbestos Co Ltd [1973] AC 518; Glasgow Corporation v Muir [1943] AC 448; Forbes v Wandsworth Health Authority [1997] QB 402; Nash v Eli Lilly & Co [1993] 1 WLR 782; Masterman-Lister v Brutton & Co [2003] 1 WLR 1511; O'Driscoll v Dudley Health Authority [1998] Lloyd's LR (Med) 210; Fenech v East London and City Health Authority [2000] Lloyd's Rep Med 35; Parry v Clwyd Health Authority [1997] PIQR P1; KR v Bryn Alyn Community (Holdings) Ltd [2003] EWCA Civ 85, [2003] QB 1441; Coban v Allen [1997] 8 Med LR 316; Webster v Cooper & Burnett [2000] PNLR 240, CA; Mortgage Corporation v Lambert & Co [2000] PNLR 820, CA; Glaister v Greenwood [2001] PNLR 602; Mellors v Perry [2003] EWCA Civ 89; Barrett v Enfield London Borough Council [2001] 2 AC 550

Legislations

Limitation Act 1980: s.11, s.14, s.33, s.38

Limitation Act 1963: s.7

Authors and other references

Law Reform Committee 20th Report (1974) (Cmnd 5630)

Law Commission Consultation Paper on Limitation of Actions (LCCP 151, 1998)

Law Commission Report on Limitation of Actions (Law Com No 270, 2001)

McGee and Scanlan, "Constructive knowledge within the Limitation Act" (2003) 22 Civil Justice Quarterly 248


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