The Gazette 1991

GAZETTE

OCTOBER 1991

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. 6 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. 7 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; 8 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 in 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. 9 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. 10 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. 11 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), 12 and where there are two or more personal

(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. (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. 5 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 " ( 3 ) No t w i t hs t and i ng sub- section (2) of this section -