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Rowe v Kingston Upon Hull City Council and another, Court of Appeal, 25 July 2003

29 July 2003
The issues

Limitation – Dyslexia – date of knowledge.

The facts

The Claimant attended schools for which the two Defendants were responsible between 1979 and 1991. In March 1991 he was diagnosed with Dyslexia by a private Educational Psychologist. The Claimant was 18 on the 2nd October 1992. Limitation therefore ran from that date. He issued proceedings in September 1998. The Defendant pleaded limitation. The Judge found that the Claimant had known he was Dyslexic before 18 but that he did not know he had suffered a significant injury until the decision in Phelps v Hillingdon in 2000. The Defendants appealed.

The decision

1. Phelps v Hillingdon held an injury could include a failure to mitigate adverse consequences. By the time the Claimant was 18 he knew he was Dyslexic and that he could have been helped but had not been. That amounted to injury in law whether or not the Claimant knew that that was what it could be called.
2. The Claimant could have brought an action regardless of the decision in Phelps. The Judge was wrong to hold that the Claimant did not know he had suffered significant injury until that decision. He had the requisite knowledge at his 18th birthday and the 3 year limitation period ran from that date.

3. As to the discretion – the Defendants would have difficulties in tracing teachers who could remember the Claimant. It was irrelevant that the same difficulties had to have been faced if the action had been brought within the primary limitation period. There was little chance of a fair trial and the Claimant had failed to discharge the burden under s.33. The Court of Appeal would not exercise its discretion. Appeal allowed.

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