On 9th July 2001 the Law Commission published its seventh programme of law reform. Item 2 of that programme concerned the Commission's intention to investigate several problems inherent in the current law on limitation. We consider here how the Law Commission's proposals might affect clinical negligence actions.
The Commission makes several criticisms of the current law, but expresses particular concern that the law takes insufficient account of the claimant's knowledge of the relevant facts, leading to unfairness in some circumstances.
PRIMARY LIMITATION PERIOD OF THREE YEARS
The Commission recommends for all cases a primary limitation period of three years starting from the date the claimant knows, or ought reasonably to know:
the facts giving rise to the cause of action;
the identity of the defendant; and
that the injury is significant.
Under existing law the three year primary limitation period for personal injury claims normally runs from the date on which the cause of action accrued. Only in specific exceptions will time run from the date of knowledge of the injured person. The change proposed would clearly impact on clinical disputes; it is relatively easy to establish the date of the cause of action, but considerably more difficult to establish accurately the date of the claimant's knowledge. Arguably this risks injustice to the defendant.
The Commission proposes that a claimant will be deemed to know that the injury is significant if:
the claimant knows the full extent of his loss or
a reasonable person would think that the injury justifies a civil claim.
Establishing the date of knowledge will involve an assessment of both "actual" and "constructive" knowledge.
Actual knowledge will not be defined in the proposed legislation; it will be treated as a straightforward issue of fact as to what the claimant knew and when - the test used by Brooke LJ in Spargo v North Essex District Health Authority 1 . In the absence of actual knowledge, constructive knowledge will start the three year period. Constructive knowledge will arise when the claimant's circumstances and abilities are such that he ought reasonably to have known the relevant facts. This reflects the current law.
The Commission rightly concluded that to rely entirely on actual knowledge would allow the claimant the luxury of delaying reasonable investigations.
LONG STOP LIMITATION PERIOD OF 10 YEARS
For non-personal injury cases the Commission recommends a long stop...