In a judgment dealing with preliminary issues only, Master Cook held that s.33 (2) Limitation Act 1980 does allow the court to disapply s.12 Limitation Act, which itself disbars actions being brought under the Fatal Accidents Act if the death occurs when the injured person could not have maintained an action and recovered damages for injury, if the reason the action could not have been maintained was the time limit found in s.11 Limitation Act.
At paragraph 48 of the judgment, Master Cook explained:
“The effect of s.12 (1) taken together with s.33 (2) is that where an injured person with capacity dies three years or more after the accident or date of knowledge without commencing proceedings, the only avenue one to the personal representative on behalf of the dependants is to the commence proceedings and apply to the court to exercise its discretion under s 33 to disapply the limitation period. On the basis that s.33 (2) imitation Act 1980 provides the court may misapply s.12 (1) where the injured person could not maintain an action was because of the time limited provided by s.11 (4). This seems to me to be consistent”.
Whilst a finding that the cause of action did actually remain vested in the deceased at the time of his death meant the interpretation of s.11 and s.33 were, in the circumstances, obiter the judgment provides useful instruction on an issue that has not previously received judicial consideration and was subject to commentary in Kemp and Kemp which appeared to Master Cook to be “misleading”.
It is also interesting to note that, despite knowing in 2009 that the deceased had a malignant melanoma and that this had been misdiagnosed in 2007, Master Cook found that neither the deceased nor the Claimant could be taken to have knowledge that the injury caused by the misdiagnosis was significant, for the purposes of s.14 Limitation Act, until they knew in June 2013 that the deceased was terminally ill.
