Donovan v Gwentoys Ltd
| Jurisdiction | UK Non-devolved |
| Judge | Lord Bridge of Harwich,Lord Templeman,Lord Griffiths,Lord Oliver of Aylmerton,Lord Lowry |
| Judgment Date | 22 March 1990 |
| Judgment citation (vLex) | [1990] UKHL J0322-2 |
| Date | 22 March 1990 |
| Court | House of Lords |
[1990] UKHL J0322-2
Lord Bridge of Harwich
Lord Templeman
Lord Griffiths
Lord Oliver of Aylmerton
Lord Lowry
House of Lords
My Lords,
I have had the advantage of reading in draft the speeches of my noble and learned friends Lord Griffiths and Lord Oliver of Aylmerton. I agree with them both and for the reasons they give I would allow this appeal.
My Lords,
For the reasons to be given by my noble and learned friend, Lord Griffiths, I would allow this appeal.
My Lords,
The plaintiff alleges that she had an accident at work on 3 December 1979 in which she strained her right wrist and suffered an aggravation to a pre-existing condition in her right knee for which she had previously undergone an operation in August 1979. The plaintiff attributes the accident to the fault of the defendants, her employers, in allowing a plastic bag to lie upon the floor adjacent to her work place upon which she says she slipped.
The plaintiff was born on 25 April 1963 and was 16 at the date of the accident. She left the employment of the defendants in February 1980 and at no time before she left did she blame the defendants for her accident. She claimed industrial injury benefit for the injury to her wrist and the Department of Health and Social Security on 5 December 1979 sent form B176 to the defendants which as her employers they were required to complete and return to enable the claim to be paid. The form showed the nature of the injury as a wrist injury and in answer to question seven which reads, "what was the accident or the alleged accident and how did it happen?" the defendants answered, "slipped and landed on wrist"; and in answer to question eight which reads, "what injuries were observed by someone other than the claimant at or shortly after the time of the accident or alleged accident?" the defendants answered, "when examined by first-aider claimant said she had difficulty in moving fingers." The plaintiff received industrial injury benefit for a period of four weeks and then returned to work until she left the defendants' employment in February 1980.
The defendants heard no more about the matter until they received a letter from the plaintiff's solicitor dated 20 September 1984 which read:
" re: Lorraine Elizabeth Donovan. We are instructed by the above-named who was formerly in your employ in 1979 to 1980. Your records will reveal Mrs. Donovan under her single name however, we do not have that name upon record at present.
Mrs. Donovan suffered personal injuries as the result of an accident occurring during her employment as a result of your negligence and/or breach of statutory duty. In the near future we shall be issuing a writ against yourselves for damages for personal injuries arising out of the accident and we should advise you to pass this letter to your insurers."
As this letter did not give the maiden name of Mrs. Donovan, did not give the date of her accident, did not describe the nature of her injury and did not identify the nature of the alleged negligence or breach of statutory duty it could not possibly enable the defendants to identify the incident in respect of which it was apparently the intention to sue them without more ado.
The defendants replied saying they had no record of employing a Mrs. Donovan and therefore no record of any injury sustained by her. By letter dated 28 September the plaintiff's solicitors gave the plaintiff's maiden name to the defendants but it was not until the statement of claim was served on 16 January 1985 that the defendants knew that it was alleged that the plaintiff slipped on a plastic bag, for the presence of which they were blamed. Even then the date of the accident was described as, "on a day in the autumn of 1979" and the injuries were described in the most general terms as:
"injuries to her upper and lower limbs, details of which will be supplied to the defendants once medical reports are to hand. The plaintiff is left with a degree of permanent disability adversely affecting her employability."
In answer to a request to particularise the day in autumn when the accident was said to have occurred, the plaintiff answered, "the plaintiff believes her accident occurred during the month of December 1979. It is possible that the said accident occurred on the 18th day of the aforesaid month." It was not until the statement of claim was amended on 15 June 1987 that the plaintiff identified her accident as occurring on 3 December 1979.
Despite the promise to supply details of the injuries and special damage contained in the statement of claim, it was not until January 1986 that a medical report obtained on behalf of the plaintiff was sent to the defendants which then revealed the real nature of her claim which focused, not on the injury to the wrist which is described as "probably a strain," but upon injury to the right knee causing aggravation and/or acceleration of a pre-existing condition and causing permanent disability. The claim for special damage for loss of wages made to 31 December 1987 was quantified at £11,485 and was alleged to be continuing. In calculating the special damage the plaintiff gave credit in respect of £85 paid by way of industrial injury benefit for four weeks as the result of her wrist injury. She also gave credit for six periods of sickness benefit totalling in all 31 1/2 weeks from which it appears that, although she claimed industrial injury benefit in respect of the wrist injury, she never claimed industrial injury benefit in respect of any disability in her right knee but contented herself with claiming sickness benefit to which she would be entitled if the disability was not the result of an accident at work. The result was that the defendants, her employers, were never alerted by the D.H.S.S. that she was attributing her leg injury to her accident in December 1979.
The plaintiff's 18th birthday was on 25 April 1981 from which date she had three years in which to commence her action against the defendants before it became statute barred on 25 April 1984. The writ was not issued until 10 October 1984, 5 1/2 months after the expiry of the period of limitation. Faced with an action based on an accident for which they had not been blamed until five years after it had occurred and for an injury to the knee of which they knew nothing until six years after the accident, it is hardly surprising that the defendants relied upon section 11 of the Limitation Act 1980 and pleaded that the plaintiff's claim was statute barred.
The plaintiff then applied to the court for a direction pursuant to section 33(1) of the Limitation Act 1980 that the provisions of section 11 should not apply to her action. In her affidavit in support of her application the plaintiff deposed that she had received advice from her trade union representative about sickness pay shortly after her accident but he never mentioned anything about a right to claim damages from her employer and she was unaware of any such right. She married in October 1980. It was not until February 1984, at a time when her leg was particularly painful, that her father-in-law asked her if she had ever claimed damages for her injury, this prompted her to discuss it with her father who suggested she should see a solicitor. She consulted her solicitor on 6 April 1984. At that time she was uncertain about the date of her accident; she believed it was about the autumn of 1979. But it should have been obvious to her solicitor that whatever the particular date of the accident in 1979 the crucial date for the purposes of limitation was the expiry of the three-year period from the date of her majority which was 25 April 1984.
In these circumstances it is difficult not to agree with the judge's criticism of the plaintiff's solicitor when he said:
"On the face of what I know at the present, it seems very difficult to envisage circumstances which would acquit the plaintiff's solicitor of negligence, she must have found out the approximate date of the accident and she presumably found out the plaintiff's age. She must be taken to know the provisions, the simpler provisions at least off-the-cuff of the Limitation Act. It would have been simplicity itself for her to have sought emergency legal aid cover to issue a writ, a protective writ to protect her client's position and if that was not forthcoming to have explained to her client that she might lose her remedy unless a writ was issued before her birthday and to give her a choice of...
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