Adams v Bracknell Forest Borough Council

For limitation purposes, knowledge of injury and its attribution to a defendant’s act or omission must be assessed separately from knowledge of negligence. Under section 14(3) of the Limitation Act, constructive knowledge is assessed objectively by asking what a reasonable person in the claimant’s situation could reasonably have been expected to discover, including with appropriate expert advice. The claimant’s situation is relevant. Although personal characteristics generally do not alter the objective standard, inhibition associated with undiagnosed reading and writing difficulties may be considered when deciding whether it was reasonable to seek help. The inquiry is fact-sensitive. An appellate court will not interfere with supported trial findings on knowledge.

The claimant alleged that an education authority had failed to identify his dyslexia and provide appropriate teaching, causing emotional and psychological injury. He began proceedings in June 2002, aged 30, and the authority pleaded limitation. The County Court tried limitation as a preliminary issue and held that the defence failed. The judge found that the claimant acquired actual knowledge no earlier than November 1999 and did not possess constructive knowledge before then. The authority appealed, arguing that the statutory knowledge requirements had been met by the claimant’s eighteenth birthday. The central issue was whether the judge had applied the correct approach to actual and constructive knowledge under sections 14(1) and 14(3).

Appeal dismissed. Tuckey LJ gave the leading judgment. Keene LJ and Peter Gibson LJ agreed. The appeal was dismissed with costs, subject to detailed assessment of the respondent’s publicly funded costs. Permission to appeal to the House of Lords was refused.

1. Applicable limitation regime. Following [2002] EWCA Civ 1099, the claim was treated as a personal injury claim subject to the three-year period in section 11 of the Limitation Act, running from accrual or the later date of knowledge.
2. Actual knowledge. Section 14(1) required knowledge that the injury was significant, that it was attributable in whole or part to the alleged act or omission, and of the defendant’s identity. Knowledge that the conduct constituted negligence was irrelevant. The claimant’s failure adequately to learn to read and write did not, without more, establish the necessary link with acts or omissions by the authority. The trial judge had found that the claimant had not made that link and might not have known, in the relevant sense, that he had suffered significant injury. Those findings were conclusive on the evidence and disclosed no basis for appellate interference.
3. Constructive knowledge. Section 14(3) imposed an objective but fact-sensitive inquiry. The court had to ask what a reasonable person placed in the claimant’s situation could reasonably have been expected to acquire. The claimant’s situation was relevant, while more personal characteristics generally were not. The approach in Nash v Eli Lilly & Co [1993] 1 WLR 782, Forbes v Wandsworth Health Authority [1997] QB 402 and Smith v Leicester Health Authority [1998] Lloyds Law Reps (Medical) 77 left room for this distinction.
4. Where reading and writing difficulties inhibit a person from drawing attention to the disability, the court may take that condition-related inhibition into account when deciding whether it was reasonable to seek help. This did not establish that every person discovering dyslexia many years later would lack constructive knowledge. On the trial judge’s findings, the claimant’s unaddressed dyslexia made it unlikely that a reasonable person in his situation would have sought help or recognised the basis of a claim earlier.
5. Section 33 did not arise because the limitation defence failed on knowledge. Tuckey LJ nevertheless observed that, if the discretion had required consideration, the stale nature of the claim, destroyed records and fading memories would have made allowing it to proceed most unlikely.

• Court of Appeal (Civil Division): Appeal dismissed with costs. Application to appeal to the House of Lords refused.
• Torquay and Newton Abbot County Court: His Honour Judge Vincent tried limitation as a preliminary issue and held that the authority’s limitation defence failed.