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.

PROMOTED VIDEO
Have you tried new the Independent Digital Edition apps?
News
ebooksNow available in paperback
Arts and Entertainment
Stik on the crane as he completed the mural
art
News
Happy in his hat: Pharrell Williams
people
Arts and Entertainment
Stella Gibson is getting closer to catching her killer
tvReview: It's gripping edge-of-the-seat drama, so a curveball can be forgiven at such a late stage
News
i100(More than you think)
News
Phyllis Dorothy James on stage during a reading of her book 'Death Comes to Pemberley' last year
peopleJohn Walsh pays tribute to PD James, who died today
News
peopleExclusive: Maryum and Hana Ali share their stories of the family man behind the boxing gloves
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: Commercial / Residential Property - Surrey

Excellent Salary: Austen Lloyd: SURREY MARKET TOWN - SENIOR PROPERTY SOLICITOR...

Recruitment Genius: Graduate Programme - Online Location Services Business

Negotiable: Recruitment Genius: What do you want to do with your career? Do yo...

Recruitment Genius: Senior QC Scientist

Negotiable: Recruitment Genius: This company is a leading expert in immunoassa...

Recruitment Genius: Development Scientist

Negotiable: Recruitment Genius: A Development Scientist is required to join a ...

Day In a Page

Homeless Veterans Christmas Appeal: ‘We give them hope. They come to us when no one else can help’

Christmas Appeal

Meet the charity giving homeless veterans hope – and who they turn to when no one else can help
Should doctors and patients learn to plan humane, happier endings rather than trying to prolong life?

Is it always right to try to prolong life?

Most of us would prefer to die in our own beds, with our families beside us. But, as a GP, Margaret McCartney sees too many end their days in a medicalised battle
Thomas Cook's outgoing boss Harriet Green got by on four hours sleep a night - is that what it takes for women to get to the top?

What does it take for women to get to the top?

Thomas Cook's outgoing boss Harriet Green got by on four hours sleep a night and told women they had to do more if they wanted to get on
Christmas jumper craze: Inside the UK factory behind this year's multicultural must-have

Knitting pretty: British Christmas Jumpers

Simmy Richman visits Jack Masters, the company behind this year's multicultural must-have
Radio 4 to broadcast 10-hour War and Peace on New Year's Day as Controller warns of cuts

Just what you need on a New Year hangover...

Radio 4 to broadcast 10-hour adaptation of War and Peace on first day of 2015
Christmas 2014: 10 best educational toys

Learn and play: 10 best educational toys

Of course you want them to have fun, but even better if they can learn at the same time
Cameron, Miliband and Clegg join forces for Homeless Veterans campaign

Cameron, Miliband and Clegg join forces for Homeless Veterans campaign

It's in all our interests to look after servicemen and women who fall on hard times, say party leaders
Millionaire Sol Campbell wades into wealthy backlash against Labour's mansion tax

Sol Campbell cries foul at Labour's mansion tax

The former England defender joins Myleene Klass, Griff Rhys Jones and Melvyn Bragg in criticising proposals
Nicolas Sarkozy returns: The ex-President is preparing to fight for the leadership of France's main opposition party – but will he win big enough?

Sarkozy returns

The ex-President is preparing to fight for the leadership of France's main opposition party – but will he win big enough?
Is the criticism of Ed Miliband a coded form of anti-Semitism?

Is the criticism of Miliband anti-Semitic?

Attacks on the Labour leader have coalesced around a sense that he is different, weird, a man apart. But is the criticism more sinister?
Ouija boards are the must-have gift this Christmas, fuelled by a schlock horror film

Ouija boards are the must-have festive gift

Simon Usborne explores the appeal - and mysteries - of a century-old parlour game
There's a Good Girl exhibition: How female creatives are changing the way women are portrayed in advertising

In pictures: There's a Good Girl exhibition

The new exhibition reveals how female creatives are changing the way women are portrayed in advertising
UK firm Biscuiteers is giving cookies a makeover - from advent calendars to doll's houses

UK firm Biscuiteers is giving cookies a makeover

It worked with cupcakes, doughnuts and macarons so no wonder someone decided to revamp the humble biscuit
Can SkySaga capture the Minecraft magic?

Can SkySaga capture the Minecraft magic?

It's no surprise that the building game born in Sweden in 2009 and now played by millions, has imitators keen to construct their own mega money-spinner
The King's School is way ahead of the pack when it comes to using the latest classroom technology

Staying connected: The King's School

The school in Cambridgeshire is ahead of the pack when it comes to using the latest classroom technology. Richard Garner discovers how teachers and pupils stay connected