The Gazette 1991

GAZETTE

OCTOBER 1991

(d) the identity of the defendant,

and

(e) 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 purpose of this section,

a person's knowledge includes

knowl edge wh i ch he mi ght

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.

" ( 3 ) No t w i t hs t and i ng sub-

section (2) of this section -

(a) a person shall not be fixed

under this section with know-

ledge 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, to act

on) that advice; and

(b) a person injured shall not be

fixed under this section with

knowledge of a fact relevant to

the injury which he has failed

to acquire as a result of that

injury."

It is submitted that the effect of

this provision in the case of a

personal injury action is as follows:

The "date of knowledge" is the

date when the plaintiff first knew

that he had sustained a significant

injury caused in whole or in part by

the defendant's conduct.

How-

ever, the plaintiff will be fixed with

knowledge of those facts which he

could reasonably have been ex-

pected to ascertain with his own

308

faculties and by investigation (un-

less impairment of these faculties

due to the injury in issue has

prevented him from acquiring such

knowledge) and also with know-

ledge of such facts as would have

been reasonably ascertainable with

the help of medical or other expert

advice which expert advice he

could reasonably

have been

expected to seek, obtain and act

upon.

But the plaintiff's

know-

ledge of the legal quality of the

defendant's conduct is irrelevant so

that if he knows that he has

sustained

a significant

injury

caused by the defendant's conduct

it is irrelevant that he does not

know that the conduct amounted

to a tort.

Finally, subsection 1(e)

extends the benefit of the sub-

section to cases, such as that of

master and servant, where the

conduct of the servant supports

the bringing of an action against

the master: the limitation period

does not begin to run against the

plaintiff in his action against the

defendant master until the identity

of the servant is known and until

the existence of the facts giving

rise to the relationship of master

and servant acting in the course of

the master's employment is also

known.

Severance of damage

It should also be remembered that

the courts are prepared, where

damage has continued to be

sustained over a period as a result

of an insidious disease, to sever

that part of the damage which was

sustained outside the limitation

period from that part of the damage

which was sustained within that

period and to allow recovery in

respect of the latter. This has been

done in cases where the damage

caused by the disease in its initial

stages was, because of what was

then known of the disease, not

negligently inflicted and therefore

not recoverable, although the later

damage was neg l i gen t ly oc-

casioned;

but the same principle

must apply where part of the

damage sustained over a period is

not recoverable by reason of the

operation of a limitation period

rather than by reason of the

absence of a breach of duty in

respect of that part of that damage.

This principle was obviously of

greater importance before the Act

of 1991 provided for the post-

ponement of the operation of the

limitation period to the "date of

knowledge" of the plaintiff within

the meaning of section 2 of that

Act. However, occasions for its use

will doubtless arise in the future

where a plaintiff - whether

because of initial unwillingness to

sue or want of appreciation that the

facts afford him/her a cause of

action - delays commencement of

his/her action beyond the limitation

period provided in the Act of

1991.

Survival actions

Section 4 of the Act of 1991 pro-

vides for a new period of limitation

survival actions,

i.e, where a

cause of action for personal injuries

has not been prosecuted to

judgment by the victim of the

wrong before his/her death and is,

by virtue of section 7 of the Civil

Liability Act, 1961, transmitted to

his estate on his death for pro-

secution by the personal represent-

ative.

In the case of a personal

injury action (not barred before the

death of the victim) so transmitted

on his death to his/her estate, the

limitation period is three years from

the date of death of the victim or

the date of the personal repre-

sentative's "knowledge" within

the meaning of section 2 of the

1991 Act,

whichever is the later.

Moreover, if the personal repre-

sentative has acquired knowledge

of the injury before his/her ap-

pointment as personal representa-

tive of the estate of the deceased,

the "date of knowledge" of that

person shall be taken to be the date

of his appointment as personal

representative so that the estate is

not fixed with knowledge acquired

by the personal representative

before his appointment.

How-

ever, "personal representative" is

defined to include any person who

is or has been a personal repre-

sentative of the deceased, includ-

ing an executor who has not proved

the will (whether or not he has

renounced probate),

and where

there are two or more personal