Smith v Liverpool City Council & Ors

For limitation purposes, a claimant has knowledge when he knows enough about the significant injury, its broad attribution to the defendant’s act or omission, and the defendant’s identity to make investigation of a claim reasonable. Knowledge that the conduct was negligent is unnecessary. Constructive knowledge is assessed by the conduct reasonably expected of a person with the claimant’s condition, while allowing for any evidentially established inhibiting features.

When exercising the discretion under Limitation Act 1980, the court must weigh all the circumstances. The passage of time before as well as after expiry of the limitation period may prejudice a defendant. In stale educational-negligence claims, strong evidence of lost records and witnesses, uncertain prospects, proportionality and the likely value of the claim may make it inequitable to disapply the limitation period.

The claimant alleged that Hampshire County Council and Knowsley Metropolitan Borough Council negligently failed to recognise his dyslexia and provide appropriate educational support during his schooling. Liverpool City Council was originally a defendant, but the claim against it was discontinued. Portsmouth City Council was replaced by Hampshire.

The court tried preliminary issues concerning whether the claimant had suffered a qualifying psychological or psychiatric injury, when he acquired actual or constructive knowledge for the purposes of Limitation Act 1980 sections 11 and 14, and whether section 33 should be used to disapply the limitation period. The injury issue was assumed in the claimant’s favour for the preliminary hearing. The central questions were when the claimant knew enough to start time running and whether the balance of prejudice justified allowing the claims to proceed.

1. Injury issue. The court assumed, without deciding, that the claimant had suffered a psychological or psychiatric injury sufficient for the purposes of the preliminary issues.
2. Date of knowledge. Under Limitation Act 1980 sections 11(4)(b) and 14, the relevant knowledge concerned the significant injury, its attribution in whole or part to the alleged act or omission, and the defendant’s identity. It was unnecessary to know that the conduct was legally negligent. The claimant knew from childhood of his reading and writing difficulties. By 26 June 1998 he had been told by a person with educational experience that he might be dyslexic and that assistance was available. By no later than 20 October 1998, following his mother’s contact with the Dyslexia Institute and his GP, he knew that the condition should have been identified and assisted at school and knew which authorities were responsible. His date of knowledge was therefore no later than 20 October 1998.
3. Constructive knowledge. The third issue did not arise. The judge nevertheless observed that a reasonable person in the claimant’s position should have consulted his GP in July 1998. The report obtained after that consultation would have provided the requisite knowledge by about 19 October 1998.
4. Section 33 discretion. The burden lay on the claimant to show that it would be equitable to proceed. The court had to consider all the circumstances, including the whole lapse of time, prejudice to both sides, the cogency and availability of evidence, the claimant’s delay and promptness, the parties’ conduct, proportionality and the strength and value of the claims. Hampshire had lost records and could not identify or obtain reliable evidence from many relevant teachers. Knowsley had also lost records, and its involvement was comparatively brief. The claimant’s prospects and likely damages were difficult to assess because essential issues of breach, appropriate treatment, causation and outcome had not been addressed.
5. The court refused to disapply section 11 under section 33. The action consequently failed and was dismissed.