W v W

• Jurisdiction: Cayman Islands
• Judge: (Smellie, C.J.)
• Judgment Date: 20 June 2011
• Court: Grand Court (Cayman Islands)
• Date: 20 June 2011

Grand Court, Civil Division

(Smellie, C.J.)

W

and

W

J. Kennedy for the plaintiff;

Mrs. K. Reid for the defendant.

Cases cited:

(1) Buck v. English Electric Co. Ltd., [1977] 1 W.L.R. 806; [1977] 2 All E.R. 756, referred to.

(2) Donovan v. Gwentoys Ltd., [1990] 1 W.L.R. 472; [1990] 1 All E.R. 1018, referred to.

(3) Hartley v. Birmingham City Council, [1992] 1 W.L.R. 968; [1992] 2 All E.R. 213, followed.

(4) Knipe v. British Railways Bd., [1972] 1 Q.B. 361; [1972] 2 W.L.R. 127; [1972] 1 All E.R. 673, followed.

(5) McCafferty v. Metropolitan Police District Receiver, [1977] 1 W.L.R. 1073; [1977] 2 All E.R. 756, followed.

(6) Robinson v. St. Helens Metrop. B.C., [2002] E.L.R. 681; [2002] EWCA Civ 1099, followed.

(7) Walkley v. Precision Forgings Ltd., [1979] 1 W.L.R. 606; [1979] 2 All E.R. 548, referred to.

Legislation construed:

Limitation Law (1996 Revision), s.13:

‘(3) An action to which this section applies shall not be brought after the expiration of the period applicable in accordance with subsection (4) or (5).

(4) Except where subsection (5) applies, the period applicable is three years from-

(a) the date on which the cause of action accrued; or

(b) the date of knowledge (if later) of the person injured.’

s.39: ‘(1) If it appears to the court that it would be equitable to allow an action to proceed having regard to the degree to which-

(a) section 13 . . . prejudices the plaintiff . . . and

(b) any decision of the court under this subsection would prejudice the defendant . . .

the court may direct that those provisions shall not apply to the action, or shall not apply to any specified cause of action to which the action relates.

. . .

(3) In acting under this section, the court shall have regard to all the circumstances of the case and, in particular, to-

(a) the length of, and the reasons for, the delay on the part of the plaintiff;

(b) the extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the plaintiff or the defendant is or is likely to be less cogent than if the action had been brought within the time allowed by section 13 or 16 (as the case may be);

(c) the conduct of the defendant after the cause of action arose, including the extent, if any, to which he responded to requests reasonably made by the plaintiff for information or inspection for the purpose of ascertaining facts which were or might be relevant to the plaintiff”s cause of action against the defendant;

(d) the duration of any disability of the plaintiff arising after the date of the accrual of the cause of action;

(e) the extent to which the plaintiff acted promptly and reasonably once he knew whether or not the act or omission of the defendant, to which the injury was attributable, might be capable at that time of giving rise to an action for damages; and

(f) the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received.’

Limitation of Actions-tort actions-extension of time-under Limitation Law (1996 Revision), s.39, court may authorize personal injury claim 21 months after expiry of limitation period if equitable and proportionate-later realization of serious effects of injury on employment and finances outweighs minimal prejudice in defending claim if contemporary evidence of injury still available

The plaintiff applied under the Limitation Law (1996 Revision), s.39(1) to pursue her personal injury claim after the expiry of the limitation period of three years under s.13(4) of the Law.

The plaintiff was the former wife of the proposed defendant, the injuries having allegedly arisen from domestic violence on January 1st, 2006. Details of the incident were a matter of record, in court, police, and hospital reports. The plaintiff had been reluctant to pursue a claim against her...