Das v Ganju [1999] EWCA Civ 1152
Facts
The Claimant gave birth to a daughter in 1978, who was born with congenital rubella syndrome, deaf blind and severely handicapped. She commenced proceedings against her GP, on the grounds that he had failed to diagnose her with rubella during her pregnancy. She issued proceedings on the 17th September 1996, which was 18 years after the cause of action arose. At first instance, the judge held that she was time barred by Section 11 of the Limitation Act 1980, but that section 33 of the 1980 should be exercised in her favour so as to disapply limitation. It was agreed that the Claimant had knowledge of injury between 1987 and 1988, so the claim would have been time barred (subject to Section 33) at some point between 1990 and 1991.
Up until 1984, the Claimant did not know that it was possible to commence proceedings against the Defendant. Then in 1984, she met a friend with some medical knowledge and they were put in touch with Action for the Victims of Medical Accidents. In June 1987, the Claimant was put in touch with solicitors, who applied for legal aid and wrote a letter of claim in August of that year. The Defendant notified the Medical Defence Union. In October 1987, the Law Society granted legal aid subject to a lump sum contribution. The Claimant and her husband had difficulty finding the money to pay, the offer lapsed and so a new application was made. However this time, a much larger contribution was requested.
In 1988 the Claimant then took advice from counsel, who advised that her daughter had no claim, but the Claimant did have such a claim. However this was not a personal injury claim according to counsel and that made limitation an insuperable obstacle, although later in his advice he changed his mind on this point. He also advised that the Claimant’s daughter had no claim, although that was incorrect. The Claimant’s solicitors later wrote to the Claimant saying that the daughter might have a claim when she reached 16.
In any event, the Claimant could not pay the contribution requested by the Law Society. In 1989 Mr and Mrs Das wrote to their solicitors saying that they no longer wished to pursue the matter.
However in July 1993 the Claimant acquired new solicitors and obtained a legal aid certificate. In 1995, the certificate was amended to allow the Claimant to bring proceedings for professional negligence against their former solicitors, and then re-amended to allow the Claimant to bring proceedings against her former GP.
Judgment
Sir Christopher Staughton delivered the first judgment. He considered the provisions of Section 33.
In relation to Section 33(3)(a), the length of delay and the Claimant’s reasons for it, that meant delay after the expiration of the period of limitation provided by Section 11 (Thompson v Brown [1981] 1 WLR 744). The main reason for the delay appeared to be the misleading advice given by counsel and solicitors. However it was not clear as to whether all the advice given was in fact negligence.
In relation to Section 33(3)b), this related to the extent to which, having regard to the delay, the evidence adduced or likely to be adduced was less cogent than if the action had been brought within the time allowed by Section 11. There must have been some loss of cogency, but such loss was probably greater in the period before limitation expired than in the delay that occurred afterwards. There was an issue as to the cogency of expert evidence, but the gist of that evidence was that any person who was pregnant and had a rash, should be sent for a blood test. The cogency of the evidence was not really a factor to any great extent against the Claimant’s claim.
Then there was Section 33(3)(c), the conduct of the Defendant after the cause of action arose. The judge was somewhat critical of Dr Ganju in this respect. By that time, it was clear that the Claimant’s daughter was severely handicapped but this was not discussed with the Claimant by Dr Ganju, and if it had been, she would have been fixed with earlier knowledge. The Claimant’s counsel argued that Section 33(3)(c) referred to the conduct of the Defendant in forensic matters in the litigation, rather than in other respects, and that was the view put forward in Halford v Brookes [1991] 1 WLR 428. On the other hand, there was authority that doctors owed a duty of candour to their patients (Naylor v Preston Area Health Authority [1987] 1 WLR 958. Even if the trial judge had been wrong to include that factor as a reproach against Dr Ganju for section 33 purposes, Sir Christopher Laughton did not regard that as a serious or significant error on the part of the judge.
Section 33(3)(d) did not arise in this case.
In relation to 33(3)(e) and (f), in the view of Sir Christopher Laughton, this case turned on the issue of wrongful advice. There was no fault on the party of Mr and Mrs Das. He referred to Whitfield v North Durham Health Authority [1995] 6 Med LR 32 where the court had said that a party’s action or inaction could not be divorced from the acts or omissions of his legal representative. However there was conflicting authority, Thompson v Brown and Halford v Brooks where it was said that it was no reproach to the Claimant that he had received the wrong legal advice. There would be prejudice to the Claimant if her claim were struck out, since she would then have to prove her case against Dr Ganju and prove that her solicitors and counsel were negligent.
It would be equitable to allow the action to proceed.
Lord Justice Buxton considered the various factors under Section 33(3). Recollection after so long would be difficult, but that problem already existed when the limitation period had begun to run, and secondly the problem may have been over emphasised, since the trial judge had been able to make a conclusion on whether the Claimant was seen by Dr Ganju at her home or in the surgery.
Identifying proper medical practice in 1978 might be problematic, but that was a very familiar task in clinical negligence cases and nothing was said to demonstrate that any particular difficulty arose.
The other point was the Claimant’s potential claim against her lawyers. Buxton LJ would want to reserve the issue of whether this consideration could reasonably apply, other than in cases where the Claimant has an unanswerable claim against his solicitors. In this case there were serious problems with the actions.
Like Sir Christopher Laughton, Buxton LJ was less clear than the trial judge that the conduct of the Defendant in not reacting to information that the Claimant’s daughter was severely disabled, should be taken into account. The extent to which Section 33(3)(c) extended beyond failure to co-operate in investigations once put in hand, was not clear on the authorities, and this was not a case in which to seek to resolve those problems. However Buxton LJ’s doubts on that issue would have no bearing on the case. Section 33 would be exercised in the Claimant’s favour.
Lord Justice Nourse agreed.
Facts
The Claimant gave birth to a daughter in 1978, who was born with congenital rubella syndrome, deaf blind and severely handicapped. She commenced proceedings against her GP, on the grounds that he had failed to diagnose her with rubella during her pregnancy. She issued proceedings on the 17th September 1996, which was 18 years after the cause of action arose. At first instance, the judge held that she was time barred by Section 11 of the Limitation Act 1980, but that section 33 of the 1980 should be exercised in her favour so as to disapply limitation. It was agreed that the Claimant had knowledge of injury between 1987 and 1988, so the claim would have been time barred (subject to Section 33) at some point between 1990 and 1991.
Up until 1984, the Claimant did not know that it was possible to commence proceedings against the Defendant. Then in 1984, she met a friend with some medical knowledge and they were put in touch with Action for the Victims of Medical Accidents. In June 1987, the Claimant was put in touch with solicitors, who applied for legal aid and wrote a letter of claim in August of that year. The Defendant notified the Medical Defence Union. In October 1987, the Law Society granted legal aid subject to a lump sum contribution. The Claimant and her husband had difficulty finding the money to pay, the offer lapsed and so a new application was made. However this time, a much larger contribution was requested.
In 1988 the Claimant then took advice from counsel, who advised that her daughter had no claim, but the Claimant did have such a claim. However this was not a personal injury claim according to counsel and that made limitation an insuperable obstacle, although later in his advice he changed his mind on this point. He also advised that the Claimant’s daughter had no claim, although that was incorrect. The Claimant’s solicitors later wrote to the Claimant saying that the daughter might have a claim when she reached 16.
In any event, the Claimant could not pay the contribution requested by the Law Society. In 1989 Mr and Mrs Das wrote to their solicitors saying that they no longer wished to pursue the matter.
However in July 1993 the Claimant acquired new solicitors and obtained a legal aid certificate. In 1995, the certificate was amended to allow the Claimant to bring proceedings for professional negligence against their former solicitors, and then re-amended to allow the Claimant to bring proceedings against her former GP.
Judgment
Sir Christopher Staughton delivered the first judgment. He considered the provisions of Section 33.
In relation to Section 33(3)(a), the length of delay and the Claimant’s reasons for it, that meant delay after the expiration of the period of limitation provided by Section 11 (Thompson v Brown [1981] 1 WLR 744). The main reason for the delay appeared to be the misleading advice given by counsel and solicitors. However it was not clear as to whether all the advice given was in fact negligence.
In relation to Section 33(3)b), this related to the extent to which, having regard to the delay, the evidence adduced or likely to be adduced was less cogent than if the action had been brought within the time allowed by Section 11. There must have been some loss of cogency, but such loss was probably greater in the period before limitation expired than in the delay that occurred afterwards. There was an issue as to the cogency of expert evidence, but the gist of that evidence was that any person who was pregnant and had a rash, should be sent for a blood test. The cogency of the evidence was not really a factor to any great extent against the Claimant’s claim.
Then there was Section 33(3)(c), the conduct of the Defendant after the cause of action arose. The judge was somewhat critical of Dr Ganju in this respect. By that time, it was clear that the Claimant’s daughter was severely handicapped but this was not discussed with the Claimant by Dr Ganju, and if it had been, she would have been fixed with earlier knowledge. The Claimant’s counsel argued that Section 33(3)(c) referred to the conduct of the Defendant in forensic matters in the litigation, rather than in other respects, and that was the view put forward in Halford v Brookes [1991] 1 WLR 428. On the other hand, there was authority that doctors owed a duty of candour to their patients (Naylor v Preston Area Health Authority [1987] 1 WLR 958. Even if the trial judge had been wrong to include that factor as a reproach against Dr Ganju for section 33 purposes, Sir Christopher Laughton did not regard that as a serious or significant error on the part of the judge.
Section 33(3)(d) did not arise in this case.
In relation to 33(3)(e) and (f), in the view of Sir Christopher Laughton, this case turned on the issue of wrongful advice. There was no fault on the party of Mr and Mrs Das. He referred to Whitfield v North Durham Health Authority [1995] 6 Med LR 32 where the court had said that a party’s action or inaction could not be divorced from the acts or omissions of his legal representative. However there was conflicting authority, Thompson v Brown and Halford v Brooks where it was said that it was no reproach to the Claimant that he had received the wrong legal advice. There would be prejudice to the Claimant if her claim were struck out, since she would then have to prove her case against Dr Ganju and prove that her solicitors and counsel were negligent.
It would be equitable to allow the action to proceed.
Lord Justice Buxton considered the various factors under Section 33(3). Recollection after so long would be difficult, but that problem already existed when the limitation period had begun to run, and secondly the problem may have been over emphasised, since the trial judge had been able to make a conclusion on whether the Claimant was seen by Dr Ganju at her home or in the surgery.
Identifying proper medical practice in 1978 might be problematic, but that was a very familiar task in clinical negligence cases and nothing was said to demonstrate that any particular difficulty arose.
The other point was the Claimant’s potential claim against her lawyers. Buxton LJ would want to reserve the issue of whether this consideration could reasonably apply, other than in cases where the Claimant has an unanswerable claim against his solicitors. In this case there were serious problems with the actions.
Like Sir Christopher Laughton, Buxton LJ was less clear than the trial judge that the conduct of the Defendant in not reacting to information that the Claimant’s daughter was severely disabled, should be taken into account. The extent to which Section 33(3)(c) extended beyond failure to co-operate in investigations once put in hand, was not clear on the authorities, and this was not a case in which to seek to resolve those problems. However Buxton LJ’s doubts on that issue would have no bearing on the case. Section 33 would be exercised in the Claimant’s favour.
Lord Justice Nourse agreed.