Law Report: Disability overrides limitation - Turner v W H Malcolm Ltd and another. Court of Appeal (Lord Justice Glidewell, Lord Justice Stocker and Lord Justice Staughton). 30 July 1992

Since there was effectively no limitation period for a plaintiff who was under a permanent disability, the effect of striking out his action if he did not proceed with it expeditiously was only to delay its final resolution.

The Court of Appeal allowed an appeal by the plaintiff, Graham Turner, suing by his wife Carol Joyce Turner, from Mr Justice Ewbank who, on 9 October 1989, imposed terms on the pursuit of a damages claim against the defendants, W H Malcolm Ltd and Francis McNulty, which a district registrar had refused to strike out for want of prosecution.

The claim concerned a motor accident in October 1980, in which the plaintiff suffered devastating brain injuries which resulted in a disability under section 38(2) and (3) of the 1980 Act.

The action began in August 1981, but from 4 February 1985, when the plaintiff served a reply, nothing was done until 18 August 1988, when he served notice of intention to proceed. The defendants applied to strike out the claim for want of prosecution.

Section 28(1) provided that 'if on the date when any right of action accrued for which a period of limitation is prescribed by this Act the person to whom it accrued was under a disability, the action may be brought at any time before the expiration of six years from the date when he ceased to be under a disability . . . notwithstanding that the period of limitation has expired'.

Simon Hawkesworth QC and Francis Treasure (Vaudrey Osborne & Mellor, Manchester) for the plaintiff; Nigel Gilmour QC and Titus Gibson (Hill Dickinson Davis Campbell, Liverpool) and Michael Lewer QC and Jane McNeill (Lace Mawer, Liverpool) for the defendants.

LORD JUSTICE GLIDEWELL said the plaintiff could bring the action at any time whilst his disability lasted, which sadly was likely to be until his death.

Save in exceptional circumstances, an action should not be struck out for want of prosecution when the plaintiff was entitled under the Limitation Act to start a fresh action on the same cause. Since Parliament had in effect provided for no limitation period for a plaintiff under a permanent disability, the effect of striking out his action, or imposing a condition on its continuation, would only be to delay its final resolution.

LORD JUSTICE STOCKER and LORD JUSTICE STAUGHTON concurred.

Start your day with The Independent, sign up for daily news emails
PROMOTED VIDEO
Have you tried new the Independent Digital Edition apps?
ebooks
ebooksA special investigation by Andy McSmith
News
i100
News
Budapest, 1989. Sleepware and panties.
newsDavid Hlynsky's images of Soviet Union shop windows shine a light on our consumerist culture
Arts and Entertainment
Eleanor Catton has hit back after being accused of 'treachery' for criticising the government.
books
News
In humans, the ability to regulate the expression of genes through thoughts alone could open up an entirely new avenue for medicine.
science
News
Williams says: 'The reason I got jobs was because they would blow the budget on the big guys - but they only had to pay me the price of a cup of tea'
arts + ents
Latest stories from i100
Have you tried new the Independent Digital Edition apps?
Independent Dating
and  

By clicking 'Search' you
are agreeing to our
Terms of Use.

iJobs Job Widget
iJobs General

Austen Lloyd: Corporate Tax Associate - London

Excellent Package: Austen Lloyd: CITY - HIGHEST QUALITY INTERNATIONAL FIRM - A...

Austen Lloyd: Senior Law Costs - London City

Excellent Package: Austen Lloyd: CITY - EXCELLENT FIRM - We have an outstandin...

Austen Lloyd: In-House Solicitor / Company Secretary - London

Excellent Package: Austen Lloyd: IN-HOUSE - NATIONAL CHARITY - An exciting and...

Austen Lloyd: Commercial Property Solicitor - Exeter

Excellent Salary: Austen Lloyd: EXETER - A great new opportunity with real pot...

Day In a Page

Isis hostage crisis: The prisoner swap has only one purpose for the militants - recognition its Islamic State exists and that foreign nations acknowledge its power

Isis hostage crisis

The prisoner swap has only one purpose for the militants - recognition its Islamic State exists and that foreign nations acknowledge its power, says Robert Fisk
Missing salvage expert who found $50m of sunken treasure before disappearing, tracked down at last

The runaway buccaneers and the ship full of gold

Salvage expert Tommy Thompson found sunken treasure worth millions. Then he vanished... until now
Homeless Veterans appeal: ‘If you’re hard on the world you are hard on yourself’

Homeless Veterans appeal: ‘If you’re hard on the world you are hard on yourself’

Maverick artist Grayson Perry backs our campaign
Assisted Dying Bill: I want to be able to decide about my own death - I want to have control of my life

Assisted Dying Bill: 'I want control of my life'

This week the Assisted Dying Bill is debated in the Lords. Virginia Ironside, who has already made plans for her own self-deliverance, argues that it's time we allowed people a humane, compassionate death
Move over, kale - cabbage is the new rising star

Cabbage is king again

Sophie Morris banishes thoughts of soggy school dinners and turns over a new leaf
11 best winter skin treats

Give your moisturiser a helping hand: 11 best winter skin treats

Get an extra boost of nourishment from one of these hard-working products
Paul Scholes column: The more Jose Mourinho attempts to influence match officials, the more they are likely to ignore him

Paul Scholes column

The more Jose Mourinho attempts to influence match officials, the more they are likely to ignore him
Frank Warren column: No cigar, but pots of money: here come the Cubans

Frank Warren's Ringside

No cigar, but pots of money: here come the Cubans
Isis hostage crisis: Militant group stands strong as its numerous enemies fail to find a common plan to defeat it

Isis stands strong as its numerous enemies fail to find a common plan to defeat it

The jihadis are being squeezed militarily and economically, but there is no sign of an implosion, says Patrick Cockburn
Virtual reality thrusts viewers into the frontline of global events - and puts film-goers at the heart of the action

Virtual reality: Seeing is believing

Virtual reality thrusts viewers into the frontline of global events - and puts film-goers at the heart of the action
Homeless Veterans appeal: MP says Coalition ‘not doing enough’

Homeless Veterans appeal

MP says Coalition ‘not doing enough’ to help
Larry David, Steve Coogan and other comedians share stories of depression in new documentary

Comedians share stories of depression

The director of the new documentary, Kevin Pollak, tells Jessica Barrett how he got them to talk
Has The Archers lost the plot with it's spicy storylines?

Has The Archers lost the plot?

A growing number of listeners are voicing their discontent over the rural soap's spicy storylines; so loudly that even the BBC's director-general seems worried, says Simon Kelner
English Heritage adds 14 post-war office buildings to its protected lists

14 office buildings added to protected lists

Christopher Beanland explores the underrated appeal of these palaces of pen-pushing
Human skull discovery in Israel proves humans lived side-by-side with Neanderthals

Human skull discovery in Israel proves humans lived side-by-side with Neanderthals

Scientists unearthed the cranial fragments from Manot Cave in West Galilee