Dobbie v Medway Health Authority [1994] EWCA Civ 13
Facts
The Claimant claimed damages for personal injury arising out of the negligent performance of an operation on the 27th April 1973 by the Defendant Health Authority. She had attended hospital in order to have a lump removed from her left breast. The consultant excised the lump and then performed a mastectomy. After operation, the lump was found to be benign. The Claimant was horrified when she woke up from the mastectomy but she had no reason to question the surgeon’s judgment. However she had suffered severe psychological illness which in turn had affected her physical health. In May 1988 she was told of a similar case where a surgeon had been negligent in performing a mastectomy. She consulted solicitors and had advice from another consultant that the lump should have been excised and examined before the mastectomy was performed.
She issued her proceedings on the 5th May 1989. The Defendant argued that her claim arose more than 3 years before the issue of proceedings and that her cause of action was accordingly statute-barred. Reliance was placed on section 11 and 14 of the Limitation Act 1980.
Judgment
Sir Thomas Bingham MR said that the ordinary rule was that time would run against a Claimant when a common law cause of action arose, and the cause of action became unenforceable if proceedings had not been started before expiry of a period of years prescribed by statute.
Bingham MR went over the history of the limitation acts, and in particular the Twentiest Report (Interim Report on Limitation of Actions : in Personal Injury Claims, Cmnd 5630, May 1974) of the Law Reform Committee. Recommendations had been made by that Committee which found expression in the Limitation Act 1975, which was later consolidated into the Limitation Act 1980.
Section 11(1) provided a special time limit for actions in respect of personal injuries, in the case of negligence, nuisance or breach of duty. The time limit was three years from a) the date on which the cause of action accrued b) the date of knowledge (if later) of the person injured.
Section 14(1) defined a person’s date of knowledge as the date on which he first had knowledge of the following facts:-
Subsection 14(2) and (3) then further defined the meaning of “significant” and “knowledge”. Lord Donaldson MR had said in Halford v Brookes [1991] 1 WLR 428 that knowledge did not mean “know for certain and beyond possibility of contradiction”. It did however mean “know with sufficient confidence to justify embarking on the preliminaries to the issue of a writ, such as submitting a claim to the proposed defendant, taking legal and other advice and collecting evidence.”
Bingham MR said that the effect of sections 11(4)(b) and 14(1)(b) was to postpone the running of time until the Claimant had knowledge that the personal injury on which he founded his claim was wholly or partly attributable to the act or omission of the Defendant on which his claim in negligence was founded. That condition was not satisfied where a man knew that he had a disabling cough or shortness of breath, but did not know that his injured condition was capable of being attributed to his working conditions, even though he had no inkling that his employer may have been at fault.
Bingham MR then considered the authorities on Section 11 and 14.
In Nash v Eli Lilly & Co. [1993] 1993 1 WLR 782 a number of Claimants claimed damages based on side effects suffered as a result of taking the drug Opren. The court said that there was a valid distinction between an expected or accepted side effect and an injurious and unacceptable consequence of taking a drug. What was required was the essence of the act or omission to which the injury was attributable.
In Broadley v Guy Clapham & Co. (1993) 4 Med. LR 328 the Claimant suffered nerve palsy in her left leg, following an operation to her knee. The court held that the Claimant had constructive knowledge which would have enabled her to investigate it timeously. Hoffman LJ rejected a submission that the Claimant must know that the Defendant’s act or omission was capable of being attributed to some fault on his part.
Bingham MR said that time did not run against a Claimant, even if he was aware of the injury, if he would reasonably have considered it insufficiently serious to justify proceedings against an acquiescent and credit-worthy defendant, if (in other words) he would reasonably have accepted it as a fact of life or not worth bothering about. The point to emphasise that knowledge of fault or negligence was not needed to start time running.
In this case the Claimant knew that her breast had been removed, and she knew that the lump that had been removed was benign. There had to be knowledge that something had gone wrong. The trial judge had made a number of findings, and had said that she had broad knowledge of sufficient facts to describe compendiously that her breast had been unnecessarily removed. Therefore the trial judge was right to hold that the Claimant’s claim was statute barred and he would dismiss the appeal against that finding. The Claimant had actual knowledge. Bingham MR did not need to explore whether she had constructive knowledge.
In relation to Section 33 of the Limitation Act this enabled the court to exercise its discretion to waive the time limit. Bingham MR said that the delay in this case was very lengthy indeed. The Claimant could have taken advice and issued proceedings years before she did. It would be unfair to require the health authority to face this claim arising out of events that took place so long ago.
Beldam LJ went over the history of the Limitation Acts. The Claimant’s counsel had sought to argue that the man in the street would not regard himself as “injured” by a successful operation. He would only regard himself as injured if he suffered consequence other than those normally to be attributed to the treatment. Beldam LJ did not believe that the definition in Section 38(1) Limitation Act 1980 of personal injury was capable of the kind of expansion argued for by the Claimant’s counsel, neither was there any need to import the perception of the reasonable patient.
Beldam LJ also agreed with the decision of the trial judge not to exercise his discretion under Section 33, having regard to the length of time elapsed. However he did not think it was appropriate to take into account the fact taken from the judgment of Lord Denning in Biss v Lambeth, Southwark and Lewisham Health Authority (Teaching) [1978] 1 WLR 382 that there had been prejudice because the action had been hanging over the head of the attendant doctor for so many years. Beldam LJ could not see how such a consideration could apply to a doctor who did not know that any action was contemplated against him.
Steyn LJ said that he agreed. The Claimant’s counsel said that his client only acquired all the necessary knowledge many years later when she received independent medical advice. This construction of Section 14(1) was an artificial and tortured one. Counsel’s argument was simply an attempt to argue that the injured party must know that he had a worthwhile cause of action. That was not a requirement of Section 14(1). Therefore the claim would be statute barred and the decision not to exercise discretion under Section 33 was correct.
Facts
The Claimant claimed damages for personal injury arising out of the negligent performance of an operation on the 27th April 1973 by the Defendant Health Authority. She had attended hospital in order to have a lump removed from her left breast. The consultant excised the lump and then performed a mastectomy. After operation, the lump was found to be benign. The Claimant was horrified when she woke up from the mastectomy but she had no reason to question the surgeon’s judgment. However she had suffered severe psychological illness which in turn had affected her physical health. In May 1988 she was told of a similar case where a surgeon had been negligent in performing a mastectomy. She consulted solicitors and had advice from another consultant that the lump should have been excised and examined before the mastectomy was performed.
She issued her proceedings on the 5th May 1989. The Defendant argued that her claim arose more than 3 years before the issue of proceedings and that her cause of action was accordingly statute-barred. Reliance was placed on section 11 and 14 of the Limitation Act 1980.
Judgment
Sir Thomas Bingham MR said that the ordinary rule was that time would run against a Claimant when a common law cause of action arose, and the cause of action became unenforceable if proceedings had not been started before expiry of a period of years prescribed by statute.
Bingham MR went over the history of the limitation acts, and in particular the Twentiest Report (Interim Report on Limitation of Actions : in Personal Injury Claims, Cmnd 5630, May 1974) of the Law Reform Committee. Recommendations had been made by that Committee which found expression in the Limitation Act 1975, which was later consolidated into the Limitation Act 1980.
Section 11(1) provided a special time limit for actions in respect of personal injuries, in the case of negligence, nuisance or breach of duty. The time limit was three years from a) the date on which the cause of action accrued b) the date of knowledge (if later) of the person injured.
Section 14(1) defined a person’s date of knowledge as the date on which he first had knowledge of the following facts:-
- that the injury in question was significant; and
- that the injury was attributable in whole or in part to the act or omission which is alleged to constitute negligence, nuisance or breach of duty.
Subsection 14(2) and (3) then further defined the meaning of “significant” and “knowledge”. Lord Donaldson MR had said in Halford v Brookes [1991] 1 WLR 428 that knowledge did not mean “know for certain and beyond possibility of contradiction”. It did however mean “know with sufficient confidence to justify embarking on the preliminaries to the issue of a writ, such as submitting a claim to the proposed defendant, taking legal and other advice and collecting evidence.”
Bingham MR said that the effect of sections 11(4)(b) and 14(1)(b) was to postpone the running of time until the Claimant had knowledge that the personal injury on which he founded his claim was wholly or partly attributable to the act or omission of the Defendant on which his claim in negligence was founded. That condition was not satisfied where a man knew that he had a disabling cough or shortness of breath, but did not know that his injured condition was capable of being attributed to his working conditions, even though he had no inkling that his employer may have been at fault.
Bingham MR then considered the authorities on Section 11 and 14.
In Nash v Eli Lilly & Co. [1993] 1993 1 WLR 782 a number of Claimants claimed damages based on side effects suffered as a result of taking the drug Opren. The court said that there was a valid distinction between an expected or accepted side effect and an injurious and unacceptable consequence of taking a drug. What was required was the essence of the act or omission to which the injury was attributable.
In Broadley v Guy Clapham & Co. (1993) 4 Med. LR 328 the Claimant suffered nerve palsy in her left leg, following an operation to her knee. The court held that the Claimant had constructive knowledge which would have enabled her to investigate it timeously. Hoffman LJ rejected a submission that the Claimant must know that the Defendant’s act or omission was capable of being attributed to some fault on his part.
Bingham MR said that time did not run against a Claimant, even if he was aware of the injury, if he would reasonably have considered it insufficiently serious to justify proceedings against an acquiescent and credit-worthy defendant, if (in other words) he would reasonably have accepted it as a fact of life or not worth bothering about. The point to emphasise that knowledge of fault or negligence was not needed to start time running.
In this case the Claimant knew that her breast had been removed, and she knew that the lump that had been removed was benign. There had to be knowledge that something had gone wrong. The trial judge had made a number of findings, and had said that she had broad knowledge of sufficient facts to describe compendiously that her breast had been unnecessarily removed. Therefore the trial judge was right to hold that the Claimant’s claim was statute barred and he would dismiss the appeal against that finding. The Claimant had actual knowledge. Bingham MR did not need to explore whether she had constructive knowledge.
In relation to Section 33 of the Limitation Act this enabled the court to exercise its discretion to waive the time limit. Bingham MR said that the delay in this case was very lengthy indeed. The Claimant could have taken advice and issued proceedings years before she did. It would be unfair to require the health authority to face this claim arising out of events that took place so long ago.
Beldam LJ went over the history of the Limitation Acts. The Claimant’s counsel had sought to argue that the man in the street would not regard himself as “injured” by a successful operation. He would only regard himself as injured if he suffered consequence other than those normally to be attributed to the treatment. Beldam LJ did not believe that the definition in Section 38(1) Limitation Act 1980 of personal injury was capable of the kind of expansion argued for by the Claimant’s counsel, neither was there any need to import the perception of the reasonable patient.
Beldam LJ also agreed with the decision of the trial judge not to exercise his discretion under Section 33, having regard to the length of time elapsed. However he did not think it was appropriate to take into account the fact taken from the judgment of Lord Denning in Biss v Lambeth, Southwark and Lewisham Health Authority (Teaching) [1978] 1 WLR 382 that there had been prejudice because the action had been hanging over the head of the attendant doctor for so many years. Beldam LJ could not see how such a consideration could apply to a doctor who did not know that any action was contemplated against him.
Steyn LJ said that he agreed. The Claimant’s counsel said that his client only acquired all the necessary knowledge many years later when she received independent medical advice. This construction of Section 14(1) was an artificial and tortured one. Counsel’s argument was simply an attempt to argue that the injured party must know that he had a worthwhile cause of action. That was not a requirement of Section 14(1). Therefore the claim would be statute barred and the decision not to exercise discretion under Section 33 was correct.