BROADLEY V GUY CLAPHAM & CO. [1994] 4 ALL ER 439
FACTS:-
In 1980 the Claimant underwent an operation for the removal of a foreign body from her knee. Unfortunately she developed nerve palsy and had left foot drop. In June 1983 she instructed the Defendant firm of solicitors. They instructed an orthopaedic surgeon who advised that the operation might have been negligent. However they took no further steps and in 1990 the Claimant issued proceedings in professional negligence against them.
JUDGMENT:-
Balcombe LJ said that the trial judge had found that the Claimant’s “date of knowledge” for the purposes of the Limitation Act 1980 was around seven months after the operation, because it was clear by then that her knee had not recovered. Therefore she had “knowledge” before August 1981.
This date was crucial because if the period for issue of her original claim expired in August 1984, then she was out of time to make a professional negligence claim against her former solicitors in 1990 (section 5 of the Limitation Act 1980).
Balcombe LJ considered previous cases. In Wilkinson v Ancliff (BLT) Ltd [1986] 3 All ER 427 was a case where the Claimant had been employed as a driver on road tankers carrying a particular chemical. The court had said that an employee who had broad knowledge might well have knowledge of the nature referred to in Section 14(1)(b) of the Limitation Act 1980 sufficient to set time running against him, even though he might not have knowledge sufficient to enable him to draft a statement of claim.
In Nash v Eli Lilly & Co. [1993] 4 All ER 383 it was said that what was required was the essence of the act or omission to which the injury was attributable.
There were two first instance decisions, Bentley v Bristol and West Health Authority [1991] 2 Med LR 359 where the Claimant’s sciatic nerve was damaged during the course of an operation. The judge held that knowledge was only acquired when he received advice from an expert. In Hendy v Milton Keynes Health Authority [1992] 3 Med LR 114 a less stringent test of knowledge was adopted.
Balcombe LJ said that the decision in Bentley was inconsistent with the general principals adopted in other cases. The Defendant’s counsel had submitted that there were four heads of knowledge:-
1) Broad knowledge – carrying out the operation to the knee in such a way that something went wrong – in this case the Claimant had broad knowledge by six months after the operation.
2) Specific knowledge – carrying out the operation in such a way as to damage a nerve thereby causing foot drop. The Claimant had specific knowledge by August 1981.
3) Qualitative knowledge – carrying out the operation in such a way as unreasonably to cause injury to a nerve
4) Detailed knowledge – sufficient to prepare a statement of claim
Balcombe LJ would dismiss this appeal.
Leggatt LJ agreed.
Hoffman LJ said that the case of Bentley was wrongly decided. In Stephen v Riverside Health Authority [1990] 1 Med LR 261 the Claimant did not know until eight years after her treatment that it could have caused her symptoms. The case would have been different if she had known from the start that the symptoms were attributable to the treatment but thought that they were normal side effects rather than indicative of negligence or fault. In Driscoll-Varley v Parkside Health Authority [1991] 2 Med LR 346 the Claimant thought that the complication from which she suffered had been caused by the way an operation on her leg had been done, but in fact it was a subsequent procedure that had caused the problems. That case was concerned with identification of the act which caused the injury.
In Halford v Brookes [1991] 3 All ER 559 it was said that the court had to determine the moment at which the Claimant knows enough to make it reasonable for him to begin to investigate whether or not he had a case against the Defendant.
FACTS:-
In 1980 the Claimant underwent an operation for the removal of a foreign body from her knee. Unfortunately she developed nerve palsy and had left foot drop. In June 1983 she instructed the Defendant firm of solicitors. They instructed an orthopaedic surgeon who advised that the operation might have been negligent. However they took no further steps and in 1990 the Claimant issued proceedings in professional negligence against them.
JUDGMENT:-
Balcombe LJ said that the trial judge had found that the Claimant’s “date of knowledge” for the purposes of the Limitation Act 1980 was around seven months after the operation, because it was clear by then that her knee had not recovered. Therefore she had “knowledge” before August 1981.
This date was crucial because if the period for issue of her original claim expired in August 1984, then she was out of time to make a professional negligence claim against her former solicitors in 1990 (section 5 of the Limitation Act 1980).
Balcombe LJ considered previous cases. In Wilkinson v Ancliff (BLT) Ltd [1986] 3 All ER 427 was a case where the Claimant had been employed as a driver on road tankers carrying a particular chemical. The court had said that an employee who had broad knowledge might well have knowledge of the nature referred to in Section 14(1)(b) of the Limitation Act 1980 sufficient to set time running against him, even though he might not have knowledge sufficient to enable him to draft a statement of claim.
In Nash v Eli Lilly & Co. [1993] 4 All ER 383 it was said that what was required was the essence of the act or omission to which the injury was attributable.
There were two first instance decisions, Bentley v Bristol and West Health Authority [1991] 2 Med LR 359 where the Claimant’s sciatic nerve was damaged during the course of an operation. The judge held that knowledge was only acquired when he received advice from an expert. In Hendy v Milton Keynes Health Authority [1992] 3 Med LR 114 a less stringent test of knowledge was adopted.
Balcombe LJ said that the decision in Bentley was inconsistent with the general principals adopted in other cases. The Defendant’s counsel had submitted that there were four heads of knowledge:-
1) Broad knowledge – carrying out the operation to the knee in such a way that something went wrong – in this case the Claimant had broad knowledge by six months after the operation.
2) Specific knowledge – carrying out the operation in such a way as to damage a nerve thereby causing foot drop. The Claimant had specific knowledge by August 1981.
3) Qualitative knowledge – carrying out the operation in such a way as unreasonably to cause injury to a nerve
4) Detailed knowledge – sufficient to prepare a statement of claim
Balcombe LJ would dismiss this appeal.
Leggatt LJ agreed.
Hoffman LJ said that the case of Bentley was wrongly decided. In Stephen v Riverside Health Authority [1990] 1 Med LR 261 the Claimant did not know until eight years after her treatment that it could have caused her symptoms. The case would have been different if she had known from the start that the symptoms were attributable to the treatment but thought that they were normal side effects rather than indicative of negligence or fault. In Driscoll-Varley v Parkside Health Authority [1991] 2 Med LR 346 the Claimant thought that the complication from which she suffered had been caused by the way an operation on her leg had been done, but in fact it was a subsequent procedure that had caused the problems. That case was concerned with identification of the act which caused the injury.
In Halford v Brookes [1991] 3 All ER 559 it was said that the court had to determine the moment at which the Claimant knows enough to make it reasonable for him to begin to investigate whether or not he had a case against the Defendant.