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Louisa Gothard
Louisa Gothard
Senior Solicitor, Head of Family Law
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NEGLIGENCE: Pearce v Doncaster Metropolitan Council [2008] EWCA Civ 1416
Date:8 JAN 2009

(Court of Appeal; Sedley and Hughes LJJ and Hedley J; 12 December 2008)
The adult claimant sued the local authority concerning the authority's failure to take him into care as a young child. The judge found a breach of the duty of care in respect of the initial decision to return the child to his birth family, and awarded the claimant £25,000. The local authority appealed, arguing that negligence had not been established, and that the claimant had had constructive knowledge of the relevant facts before he obtained access to the files. The claimant had first contacted the authority, asking to see his file almost 10 years before he eventually viewed the file. The authority had responded to his initial requests by offering the claimant appointments to view his files, and had also offered to pay his transport costs,but the claimant had failed to attend those appointments.

In this case the issue under Limitation Act 1980, s 14(3), was whether the claimant might reasonably have been expected to acquire the necessary knowledge from facts ascertainable either by himself or with the help of expert advice. Had the judge addressed the issue of constructive knowledge, he would have been bound to find that the claimant had such knowledge. The claimant's application for a discretionary extension of time pursuant to s 33 of the 1980 Act was to be remitted to the court below, ideally to the trial judge.