Donovan v Gwentoys Ltd 1990

FACTS:-

In 1979, the Claimant aged 16 slipped and fell at work, straining a wrist and aggravating a pre-existing knee condition. She received industrial injury benefit for the injury to the wrist but made no mention of the injury to her knee to her employers. In 1980 the Claimant left the Defendants’ employment. She consulted solicitors shortly before limitation, but they failed to serve proceedings. In April 1984 her claim became statute barred, the month of her 21^st birthday. Proceedings were issued in October 1984 and served in January 1985, but until that date the Defendants did not actually know the nature of the Claimant’s claim. Moreover they were not informed of the real nature of the claim until June 1987, when a medical report revealed that the claim was focused on injury to the right knee and not on the injury to the wrist. The date of the accident was not identified until June 1987. The Claimant applied to the court for a direction under Section 33 of the Limitation Act 1980 to the effect that the provisions of Section 11 should not be applied. The matter came before the House of Lords.

JUDGMENT:-

Lord Griffiths gave the judgment of the court, with which Lord Bridge and Lord Templeman agreed. Lord Oliver and Lord Lowry also agreed.

Lord Griffiths set out the history of the case. He said that it would be very difficult to acquit the Claimant’s solicitor of professional negligence. They must have known the date of the accident and the Claimant’s age. However the trial judge had held that he was restricted, when considering his discretion on Section 33 to the period between the expiry of the limitation period and the issue of the writ.

Lord Griffiths considered the operation of Section 33, and in particular the criteria under Section 33(3). He also referred to the case of Thompson v Brown Construction (Ebbw Vale) Ltd [1981] 2 All ER 296.

Section 33(3)(b) clearly referred to the delay subsequent to the expiry of the limitation period, and that was the same period of delay to which the court should have regard under Section 33(3)(a).

It did not however follow that, in weighing the prejudice to the Defendant that the court was not entitled to take into account the date on which the claim was first made against Defendant. In Thompson the claim had been notified to the Defendants within a few weeks of the accident and liability and damage had been considered by their insurers at an early stage. The primary purpose of the limitation period was to protect Defendants against stale claims. The Defendants’ insurers in Thompson never suffered this prejudice. By contrast in the present case, the Defendants were faced with a truly stale claim first made on them five years after the event.

In weighing the degree of prejudice suffered by a Defendant it should always be relevant to consider when the Defendant first had notification of the claim and thus the opportunity he would have to meet the claim at trial, if he was not to be permitted to rely on his limitation defence. To the extent that the case of East v London Country Bus Services Ltd (1985) Times 23 November appeared to cast doubt on this proposition it should not be followed. Therefore the Defendants’ appeal would be allowed.