ADAMS V BRACKNELL FOREST BOROUGH COUNCIL [2004] UKHL 29

FACTS:-

The Claimant attended the Defendant’s schools between 1977 and 1988. He turned 18 on the 13th March 1990. He had always had literacy difficulties and as an adult found those difficulties to be an impediment in his employment and the cause of psychological difficulties. He consulted his doctor about the psychological difficulties, but was too embarrassed to disclose his literacy difficulties. In 1999 when aged 27, he met by chance an educational psychologist who suggested that he might be dyslexic. He approached solicitors on the 12th January 2000 and legal aid was obtained on the 15th March 2000. A doctor examined the Claimant and found that he suffered from severe dyslexia, as well as exhibiting significant difficulties with depression as a result of the dyslexia. On the 25th June 2002 he issued proceedings against the Defendant for failing to assess his educational difficulties.

The Defendant had destroyed the Claimant’s records when he reached 21. Their teaching staff had no specific recollection about how his learning difficulties had been addressed at the time, although one thought that he might have been referred to an educational psychologist. They pleaded in their Defence that the Claimant was time barred under section 11 of the Limitation Act 1980, on the grounds that his “date of knowledge” was before the 25th June 1999 (three years before issue of proceedings). The trial judge, Judge Vincent in the Torquay and Newton Abbott County Court and the Court of Appeal found that the “date of knowledge” fell after the 25th June 1999.

HELD:-

Lord Hoffman gave the lead judgment.

Was this claim a claim for personal injuries?

Lord Hoffman dealt first with the issue of whether a failure to ameliorate a condition such as dyslexia could be said to be a personal injury.

Dyslexia was a congenital condition. An action for negligence against a local education authority for educational neglect was a new development in the law. The House of Lords had decided in the cases of Phelps v Hillingdon London Borough Council and Anderton v Clwyd County Council [2001] 2 AC 619 that a failure to diagnose a congenital condition and to take appropriate action could constitute a personal injury claim. Lord Hoffman felt that the reasoning in these cases was equally applicable to section 11 of the Limitation Act 1980, which by section 38(1) defined “personal injuries” as including “any disease and any impairment of a person’s physical or mental condition”.

Date of knowledge

The next issue was that of “date of knowledge”. Lord Hoffman set out section 14 of the Limitation Act 1980, which said:-

“14(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 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 that 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 held 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.”

The court also had discretion under section 33 of the Limitation Act 1980 to disapply the limitation period.

Lord Hoffman turned to the hearing of the preliminary issue before Judge Vincent. There had been witness evidence from the Claimant and his friend, Monica Harding, an educational psychologist. She had first suggested to him that he might have dyslexia.

Section 14(3) used the word “reasonable” three times. The word was generally used in the law to import an objective standard. Lord Hoffman examined the history of this section and said that the introduction of section 33 of the Limitation Act 1980 (the court’s discretion to waive limitation) had altered the balance between a subjective interpretation of section 14(3) and the objective interpretation. That had been part of the reasoning of the Court of Appeal in a case by the name of Forbes v Wandsworth Health Authority [1997] QB 402.

Lord Hoffman said that the Claimant should be assumed to be a person who had suffered the injury in question and not some other person, but he did not see how the Claimant’s particular character or intelligence could be relevant. In his opinion, section 14(3) required one to assume that a person who was aware that he had 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, would be sufficiently curious about the causes of the injury to seek whatever expert advice was appropriate.

In this case the trial judge had been right to apply 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 was a factor which had to be taken into account.

However Lord Hoffman’s difficulty lay 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, Lord Hoffman should have thought that the Claimant could reasonably have been expected to seek expert advice years ago.

The judge’s finding as to the generally inhibiting effect of untreated dyslexia appeared to have been based on judicial notice. It could not be based on the report from the medical expert.  Although Lord Hoffman could understand a person wanting to avoid the social embarrassment of revealing his difficulties, it would need some evidential foundation. Such evidence was entirely lacking.

As a consequence the date of constructive knowledge was in Lord Hoffman’s opinion well before three years before issue of the Claim form.

Section 33 of the Limitation Act 1980

The Court of Appeal had said that if it had been necessary to apply section 33, it was most unlikely that it would have allowed the claim to proceed. In the case of Robinson v St Helens Metropolitan Borough Council [2003] PIQR P128 Sir Murray Stuart-Smith said that 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 the award was an important factor, particular if that meant that the case was likely to take a long time to try. A claim made after many years would place the defendants in great difficulty, particularly in the absence of relevant witnesses and documents. The contesting of such a claim was also likely to be expensive and likely to divert previous resources.

In this case the award was likely to be modest and there were no special features about the reasons why Mr Adams left his claim so late which tilted the balance in his favour.

Lord Phillips agreed with Lord Hoffman.

Lord Scott said that in his view, this was a claim for personal injuries. In relation to the construction of section 14 of the Limitation Act 1980, there was no expert evidence before the court justifying the conclusion that the Claimant’s inhibitions, to which his failure to disclose to his medical advisers was attributed, were inhibitions which other people that problem would be expected to share. Statutory provision for constructive knowledge should strike a balance between the interests of claimants and those of defendants. The approach to section 14(3) constructive knowledge should be mainly objective.

In relation to section 33, Lord Scott agreed with Lord Phillips.

Lord Walker commented that the law on limitation had still not achieved a wholly coherent state. The courts had moved towards a more objective approach and in Lord Walker’s view they were right to have done so.

However he would be cautious about any simple formula put forward to cover every case that might occur.  On the facts of this case he would agree with Lord Hoffman.

Baroness Hale said that she agreed with Lord Hoffman that this was a case of “personal injury.”

However she took a slightly different view on the “date of knowledge” point. She went over past cases, where the courts had considered whether the test should be objective or subjective. In Nash v Eli Lilly & Co. [1993] 1 WLR 782 the court 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.

By contrast in Forbes v Wandsworth Health Authority [1997] QB 402 the majority of the court applied a more stringent test, in which the personal characteristics of the Claimant were to be disregarded.

Baroness Hale also referred to the recommendations of the Law Commission in their Consultation Paper on Limitation of Actions (1998) (Law Commission Consultation Paper No.151), which pointed to the courts lack of consistency in their interpretation of section 14(3) of the Limitation Act 1980. The Law Commission adhered to their provisional view that the Claimants 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.

Some personal injury cases, in particular those involving childhood abuse, presented particular difficulties for any limitation regime. The Law Commission had considered that a more subjective approach to knowledge was required, and the Government had indicated that it accepted their proposals.

There was a related difficulty. Wording virtually identical to that in section 14(3) also appeared in section 14A(10) dealing with constructive knowledge in negligence claim for latent damage or other economic loss not involving personal injury. There was no equivalent of section 33 to section 14A(10) claims although there was an overriding time limit under section 14B. Baroness Hale said that these features would support the more generous approach to constructive knowledge.

However Baroness Hale said that in her view, there was little difference in practice between the two approaches (subjective/objective) to constructive knowledge. The question was when was it reasonably to expect a potential claimant to seek medical or other advice? Objectively it would be reasonable to seek such advice when he had good reason to do so. That would depend on the situation in which the Claimant found himself, which included the consequences of the accident, illness or other injury. Rarely if ever, would it depend upon his personal characteristics.

In this case, the Claimant knew that he was experiencing serious problems in his life as a result of his difficulties with reading and writing. He clearly had good reason to seek advice but he failed to do so, because he “did not want to go there”. His motive for not seeking advice was irrelevant.

There was a distinction between those personal characteristics which affected the ability to acquire information and those which affected one’s reaction to what one does know. Baroness Hale quoted from an article “Constructive knowledge within the Limitation Act” (2003) 22 CJQ 248 (McGee and Scanlan). The writers had suggested, in an attempt to reconcile the authorities that 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 the Claimant’s make-up which has no discernible effect upon his ability to discover relevant facts should be disregarded.

Therefore Baroness Hale would allow the appeal.