Non-Disclosure Vitiated Disapplication of Limitation Period

Long v Tolchard and Sons Ltd (CA TLR 5 January)

It by no means followed that if the claimant had a cast iron case on liability, the court had to exercise its discretion under s33 of the Limitation Act 1980 to disapply the limitation provision of s11 of the Act. That was no more than one of the circumstances, albeit an important circumstance, that the court had to consider. A claimant applying to the court to disapply the limitation provision had to disclose all the relevant circumstances at the hearing of the application. If evidence came to light subsequently that the claimant in a personal injury action had failed to give a truthful and accurate history of the injury, the judge’s purported exercise of his discretion under s33 would be set aside. The claimant claimed that he had injured his back on 9 August 1983 while working for the defendants but did not start proceedings against them until 8 February 1990. The judge decided that the claimant had not been in a position to consider a claim prior to March 1987 when he saw an orthopaedic registrar who advised him that his back trouble was serious and that he should change jobs. The judge disapplied the limitation period, found the defendants to be wholly liable and ordered a separate trial of the issue of quantum. In preparing for the hearing on quantum the defendants discovered the claimant’s army records and those of his chiropracter showing that he had not given an accurate history of his back injury to the judge. Accordingly although liability had been established and there could be no appeal against that finding it would be inequitable to allow an action to proceed where the claimant had not given a truthful and accurate history to the doctors and the court on matters affecting causation and quantum. Accordingly the judge’s purported exercise of his discretion under s33 was set aside.