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Limitation Period and Date of Knowledge

April 2, 2012

Ministry of Defence v AB & Ors [2012] UKSC 9

This was a sad case which illustrates how the courts assess whether a claim is out of time under the Limitation Act 1980. It considers what knowledge is on behalf of the Claimant. The case involved nuclear test veterans claiming compensation against the Government. One thousand servicemen claimed exposure to radiation during tests in the 1950s which it was alleged caused illness disability and death. The case was heard in the Supreme Court. Under Section 14 limitation Act 1980 a Claimant is allowed 3 years from the date the he realises that he has suffered a significant injury and it is attributable to the negligence of the Defendant to issue a claim.

The servicemen had argued that they only became aware of their injury when they obtained expert evidence.

Limitation Period and Date of Knowledge.

Section 11 Limitation Act 1980

(4) Except where subsection (5) below applies, the period acceptable is three years from –

(a) the date on which the cause of action accrued: or

(b) the date of knowledge (if later) of the person injured.

Section 14 Definition of date of knowledge for purposes of sections 11 and 12

(1) In sections 11 and 12 of this Act 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 in part to the act or omission which is alleged to constitute negligence, nuisance or breach of duty; and

(c) the identity of the defendant; and

(d) if it is alleged that the act or omission was that of a person other than the defendant, the identity of that person and the additional facts supporting the bringing of an action against the defendant;

and knowledge that any acts or omissions did or did not, as a matter of law, involve negligence, nuisance or breach of duty is irrelevant.

(2) For the purposes of this section an injury is significant if the person whose date of knowledge is in question would reasonably have considered it sufficiently serious to justify his instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment.

(3) For the purposes of this section a person’s knowledge includes knowledge which 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 help 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, act on) that advice.

33 Discretionary exclusion of time limit for actions in respect of personal injuries or death.

(1) If it appears to the court that it would be equitable to allow an action to proceed having regard to the degree to which –

(a) the provisions of section 11 … or 12 of this Act prejudice the plaintiff or any person whom he represents; and

(b) any decision of the court under this subsection would prejudice the defendant or any person whom he represents;

the court may direct that those provisions shall not apply to the action, or shall not apply to any specified cause of action to which the action relates.”

The claims all failed under s.11 of the Limitation Act 1980 on the grounds that the 3 year limitation time limit ran from the time veterans began to hold a reasonable belief that their illnesses were caused by the Ministry of Defences failure to protect them from exposure to radiation. In this case the court held that there had been adequate knowledge going back to the 1980′s, including the formation of the British Nuclear Test Veterans Association itself to support veterans, and various other widely available sources of information.

The court went on to confirm that the claims were also unlikely to succeed on the basis of causation in that the veterans had admittedly been unable to reliably prove that their illnesses were caused by an exposure to radiation, a central issue to the personal injury claims. The judges thought it would be absurd to allow their claims to proceed on the limitation issue only to then inevitably be struck out.

The judges in the majority considered that the law therefore would not allow the claims to succeed and all were dismissed.

The case will apply to all cases. It is important that this is considered immediately on instruction by the solicitor.

But regardless of the solicitors instruction the belief of the Claimant will have to be examined in detail even as to the period before they instructed a solicitor. Once a claim is suspected then the time for bringing a claim starts running.