"KNOWLEDGE" UNDER SECTION 24A OF THE LIMITATION ACT
In Leow Peng Yam v Kang Jia Dian Aryall [2021] SGHC 275, the High Court held that knowledge within the meaning of Sections 24A(2)(b), 24(4)(b) and 24A(6)(a) of the Limitation Act (Cap 163, 1996 Rev Ed) must include a reasonable cognitive understanding of the information within the plaintiff’s possession. Hence, if the plaintiff did not have the sufficient cognitive function for the requisite knowledge, time would not begin to run for the purposes of the limitation period until the plaintiff had regained sufficient cognitive function.
Facts. The plaintiff (“Ms. Kang”) was severely injured in a collision with a bus on 14 May 2016, and suffered, as a result, serious cognitive difficulties (at [2]). The defendant bus driver (“Mr. Leow”) accepted that the collision was caused by his negligence but asserted that her action was time-barred.
The subject matter of the appeal was therefore the time at which the limitation period commenced for Ms. Kang (at [3]).
The salient facts were not in dispute (at [4]). The key dates and events are set out below (at [4]-[6]):
14 May 2016 – An SMRT Corporation Ltd bus driven by Mr. Leow collided into Ms. Kang when she was crossing a signalised traffic junction.
23 May 2016 – Ms. Kang was discharged from Khoo Teck Puat Hospital. She filed a police report regarding the accident with the Traffic Police. Among others, she asked the police officer for the name of the bus driver but was told that this information was confidential.
23 August 2016 – Ms. Kang was given hospitalisation leave until 23 August 2016.
18 June 2019 – Ms. Kang filed the writ of summons against Mr. Leow, three years, one month and four days after the accident.
Section 24A Limitation Act. The parties’ arguments centred on Section 24A of the Limitation Act which applied to negligence claims involving personal injury (at [9]). We set out the relevant sections in full below:
“Time limits for negligence, nuisance and breach of duty actions in respect of latent injuries and damage
24A.—(1) …
(2) An action to which this section applies, where the damages claimed consist of or include damages in respect of personal injuries to the plaintiff or any other person, shall not be brought after the expiration of –
(a) 3 years from the date on which the cause of action accrued; or
(b) 3 years from the earliest date on which the plaintiff has the knowledge required for bringing an action for damages in respect of the relevant injury, if that period expires later than the period mentioned in paragraph (a).
(3) …
(4) In subsections (2) and (3), the knowledge required for bringing an action for damages in respect of the relevant injury or damage (as the case may be) means knowledge –
(a) that the injury or damage was attributable in whole or in part to the act or omission which is alleged to constitute negligence, nuisance or breach of duty;
(b) of the identity of the defendant;
(c) if it is alleged that the act or omission was that of a person other than the defendant, of the identity of that person and the additional facts supporting the bringing of an action against the defendant; and
(d) of material facts about the injury or damage which would lead a reasonable person who had suffered such injury or damage to consider it sufficiently serious to justify his instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment.
(5) …
(6) For the purposes of this section, a person’s knowledge includes knowledge which he might reasonably have been expected to acquire –
(a) from facts observable or ascertainable by him; or
(b) from facts ascertainable by him with the help of appropriate expert advice which it is reasonable for him to seek.
(7) … ”
(Emphasis added by Court)
The expert’s opinion, which was uncontradicted at the trial below, was that “… Ms Kang’s cognitive abilities had been impaired to the extent that she would have needed at least eight weeks to reasonably contemplate taking the necessary action to identify the bus driver” (at [8]). Relying on this, the District Court found that time did not begin to run until eight weeks after the accident.
While this evidence was challenged on appeal (at [31]-[33]), it suffices to say that the eight-week window provided by the expert’s evidence – if accepted by the appeal Court – would be sufficient to bring Ms. Kang’s claim within the three-year limitation period.
The issues. There were two pertinent issues before the Court (at [13]):
“(a) First, what “knowledge” in ss 24A(2)(b), 24A(4)(b) and 24A(6)(a) required, and whether the impairment of Ms Kang’s cognitive functions affected the time at which she acquired the requisite knowledge.
(b) Second, on the facts of this case, whether the eight-week recovery period was properly excluded by the District Judge in ascertaining the limitation period.”
The difference in Mr. Leow’s and Ms. Kang’s positions lay in their interpretation of s 24A(6)(a) of the Limitation Act.
Knowledge. Reviewing ss 24A(2)(b), 24A(4)(b) and 24A(6)(a) of the Limitation Act, the Court stated that the “relevant issue of statutory construction, therefore, was whether a plaintiff whose cognitive functions were impaired could contend that it was reasonable for her not to have acquired knowledge until after she had regained her cognitive functions sufficiently.” (at [19])
After considering English authorities on two alternative positions (at [21]-[23]), the Court held that reasonableness is the touchstone and therefore decided to adopt a fact-specific approach, with the key question framed as being “… whether, given such circumstances, the plaintiff could reasonably have been expected to acquire the requisite knowledge from facts observable and ascertainable by her.” (at [24])
The Court clarified that “… facts “observable or ascertainable” by a plaintiff would have no meaning without sufficient cognitive function. Without the ability to understand, “knowledge which [a plaintiff] might reasonably have been expected to acquire” would not form. …” (at [25])
Nonetheless, the Court also made clear that “… reasonableness must also apply to the period in question. Each case must turn on its own particular facts. For example, if the injured person experienced a permanent loss of cognitive function such that the suit would reasonably be brought by a deputy or legal representative, the standard of reasonableness would apply to such a plaintiff; the suspension of limitation would not be indefinite.”
The Court found support for this approach in two Singapore authorities (at [26]-[27]), which the Court viewed as providing “a complementary way of approaching the issue … to recognise that in ascertaining a reasonable time for the purposes of s 24A(6), the degree of knowledge required under ss 24A(2)(b) and 24A(4)(b) is that of reasonable belief in the defendant’s identity.” (at [27]; emphasis added by Court)
Eight-week recovery period. Turning to the eight-week recovery period, Mr. Leow submitted that as (at [29]):
Ms. Kang had “actual knowledge of the date, time and location of the accident; that it was an SMRT bus that had hit her; and that representatives from SMRT and the police had spoken to her about the accident”;
Ms. Kang knew that the Traffic Police knew Mr. Leow’s identity, even if they would not reveal it to her; and
Ms. Kang had asked the Traffic Police about the bus driver’s identity,
she had the requisite constructive knowledge to trigger the running of limitation period.
The expert’s evidence was different: in brief, the expert took the view that given Ms. Kang’s condition, there must be a reasonable period for her to recover sufficiently to begin applying her mind to the matter, and the necessary steps for her to do so “… were “complex” and required “higher cognitive function[s]” which most patients would require six to twelve weeks to recover after suffering similar injuries, such that eight weeks was “a reasonable cut-off time”.” (at [30])
The High Court preferred the expert’s evidence. The Court clarified the District Judge’s finding and stated that “the mere fact that Ms Kang had some other information in her possession did not mean that she could reasonably have been expected to use this information to acquire knowledge of Mr Leow’s identity.” (at [34]; emphasis added by Court) Thus, while “[Ms. Kang] may have had the ability to apply her mind to the question of Mr Leow’s identity when she made inquiries on 23 May 2016, but on [the expert]’s evidence, she could not reasonably have been expected to do anything more to acquire specific knowledge of his identity.” (at [35])
Therefore, the Court found that the eight-week recovery period ought to be excluded in the calculation of the three-year limitation period under ss 24A(2)(b), having regard to 24A(4)(b) and 24A(6)(a) of the Limitation Act (at [36]).
The end result is that Ms. Kang’s claim was found not to be time-barred.
Significance. This case is important as it clarifies that a fact-specific approach should be taken when applying s 24A(6)(a) of the Limitation Act. The knowledge under the limb requires the plaintiff to have sufficient cognitive function to act upon any information and take any necessary steps.
In addition, the standard of reasonableness, as is encompassed in the plain wording of the limb, will be relevant to determine how long the suspension of limitation should apply until the plaintiff regains sufficient cognitive function for the requisite knowledge.
Thus, the time in which limitation begins to run is dependent on reasonableness. As the Court stated, while a plaintiff requires sufficient cognitive function to act on any information, the lack of a sufficient cognitive function does not permanently suspend the time for limitation.
As such, depending on the facts of the case, there can be a degree of uncertainty over when the limitation period will begin to run. A prospective plaintiff would do well to seek legal advice and, if necessary, commence a suit well before the limitation period ends to ensure that the claim is not time-barred.
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