FORBES V WANDSWORTH HEALTH AUTHORITY [1996] EWCA Civ 1318
Facts:-
The Claimant was 56 years of age when he was admitted to the Defendants’ hospital in October 1982. He had a long history of circulatory problems and he was admitted for a by pass operation. However the operation was not successful, and he was told that he would have to lose his leg because of the risk of gangrene. It was alleged that if the first operation had been carried out sooner, there would have been no need to amputate the leg.
The Claimant took legal advice in 1991, and a report was provided from a vascular surgeon in October 1992. The Claimant issued proceedings on the 10th December 1992, more than seven years after expiry of the primary limitation period.
Judgment:-
Lord Justice Stuart-Smith considered the Limitation Act 1980, and in particular Sections 11 and 14. He said that the injury was the loss of the leg and the cause of the injury was the surgeon’s advice. He referred to the case of Broadley v Guy Clapham [1993] 4 All ER 439 where the court said that the Claimant should know that he was suffering from something that was not the direct and inevitable consequence of the operation. In another case Smith v West Lancashire Health Authority [1995] PIQR 514 which concerned a course a treatment that had not worked, the court had said that simply telling the Claimant that the treatment had not worked, was not the same as imbuing the Claimant with a knowledge of an omission to operate. Stuart-Smith LJ also referred to Hallam-Eames v Merrett Syndicates Limited unreported, CA Transcript 13 January 1995 where Hoffman LJ had said that the Claimant did not have to know that he had a cause of action or that the Defendant’s acts could be characterised in law as negligent of falling short of some standard of professional or other behaviour. He must have known the facts which could be fairly described as constituting the negligence of which he complains.
Counsel for the Defendant had relied upon two cases, Davies v Ministry of Defence CA 26.7.85 (unreported) was the first. In that case May LJ had said that the construction “attributable” in Section 14(1)(b) of the 1980 Act meant “capable of being attributed to”. That approach was approved and adopted by the Court of Appeal in Wilkinson v Ancliff (BLT) Ltd [1986] 3 All ER 427. He also relied upon the case of Dobbie v Medway Health Authority [1994] 1 WLR 1234 where Sir Thomas Bingham MR said that time started to run against the Claimant when he knew that the personal injury on which he founded his claim was capable of being attributed to something done or not done by the Defendant whom he wished to sue.
Stuart-Smith LJ said that all the Claimant needed to know was that there was a period of time between the first and second operations, that the second operation was not successful, and that in consequence, his leg was amputated. Counsel for the Defendant also referred to another case, Jones v Liverpool Health Authority CA unreported Transcript 19 July 1995. This was a case where there was a delay in taking corrective treatment, although the corrective treatment itself was not negligent. However in that case, the Claimant had been advised later by the surgeon that the treatment was not negligent. He did not know that he had a possible cause of action. The Court of Appeal said that if a Claimant receives an expert report to the effect that he does not have a cause of action, and years later, he is advised by another expert that he may have a cause of action, he cannot claim thereafter that he did not gain knowledge for the purposes of sections 11 and 14 of the 1980 Act.
Stuart-Smith LJ said that there was a distinction between causation and negligence. The first was relevant to section 14(1) of the 1980 Act, the second was not. In this case, the trial judge was right to hold that the Claimant had no actual knowledge. On the issue of constructive knowledge, the Claimant did have such knowledge.
Stuart-Smith LJ asked the question – could a person who has effectively made the decision not to ask why an operation had not been a success, later change his mind and then seek advice which revealed all along that he had a claim? Stuart Smith LJ thought not as any other construction would make the 1980 Act unworkable. In any event, Section 33 gave the court an ultimate discretion to disapply limitation in such cases.
Another example might be where the initial injury, although significant, appeared to be not so serious as to affect the Claimant’s quality of life but subsequently proved to be much more serious. The fact that the Claimant initially did nothing to find out the cause of the injury should not preclude him from making a claim. Alternatively something might turn on the advice or information that the Claimant was given by the Defendant’s employees. There was nothing of the sort here.
In the judgment of Stuart-Smith, a reasonable man in the position of the deceased, who knew that the operation had been unsuccessful, and that he had suffered a major injury which would seriously affect his enjoyment of life in the future, should and would have taken advice reasonably promptly.
Stuart-Smith had difficulty in seeing how the individual character and intelligence of the Claimant could be relevant in an objective test of “reasonably.” It did not seem to him that the fact that a Claimant was more trusting, incurious, indolent, resigned or uncomplaining by nature could be a relevant characteristic. In this case the Claimant did have constructive knowledge.
Therefore section 33 of the 1980 Act fell to be considered. Subsection 4 clearly contemplated that an action could be brought in respect of personal injuries sustained by a person who was deceased before the claim was brought. Stuart-Smith could see now reason why it should not equally apply if the Claimant died after an action was brought.
However it would be wrong to exercise section 33 discretion in the Claimant’s favour. The Defendant Health Authority had submitted that as a result of certain insurance arrangements, the Health Authority would have to bear a greater share of the damages and costs that it would have done previously. Secondly medical records could not be found. It was not easy for experts to consider the proper standard of care so long ago.
There was also the strength of the Claimant’s case. In the case of Nash v Eli Lilly [1993] 1 WLR 782 the court said that if it was shown that the claim was a poor case lacking in merit, there might be significant and relevant prejudice to the Defendants if the limitation provisions were disapplied.
Therefore the court should not exercise section 33 discretion in this case.
Lord Justice Evans agreed with Stuart-Smith LJ to the effect that actual knowledge had not been proved against the Claimant. In relation to constructive knowledge, this was a difficult issue. There must have been some indication to the Claimant that something had gone wrong. Whilst that was not actual knowledge, it may have been reasonable for the Claimant to take alternative advice.
Since there was a wide discretionary power to extend the period of limitation in certain circumstances, there was no clear requirement to construct the knowledge provisions in Section 14 narrowly or in favour of Claimants. An objective standard would apply to Section 14(3). It was not appropriate to regard this issue in terms of a decision made consciously or unconsciously by the Claimant. If the question was, whether objectively or reasonably, he could be expected to have obtained further advice, then Evans LJ did not see that his actual mental processes were relevant at all.
In relation to Section 33, Evans LJ agreed that discretion should not be exercised in the Claimant’s favour. The principal factor was the weakness of the Claimant’s claim.
Lord Justice Roch disagreed on the issue of constructive knowledge. In the case of Nash v Eli Lilly the court had said that the proper approach was to determine what this Claimant should have observed or ascertained, whilst asking no more of him than is reasonable. The standard of reasonableness in connection with the observations and/or the effort to ascertain were therefore finally objective, but should be qualified to take into consideration the position, and circumstances and character of the Claimant. Roch LJ said that he had difficulty with this statement, since an objective standard should not include the individual circumstances of the Claimant. However that decision came from the Court of Appeal, and this court was bound by it.
As the trial judge had to take account of the Claimant’s position, circumstances and character, Roch LJ was not prepared to hold that he was clearly wrong in the conclusion that he had reached, namely that the Claimant did not have constructive knowledge until much later when he approached solicitors.
The fact that the Claimant had approached solicitors in 1991, did not provide evidence that it would have been reasonable for him to seek expert advice earlier.
Facts:-
The Claimant was 56 years of age when he was admitted to the Defendants’ hospital in October 1982. He had a long history of circulatory problems and he was admitted for a by pass operation. However the operation was not successful, and he was told that he would have to lose his leg because of the risk of gangrene. It was alleged that if the first operation had been carried out sooner, there would have been no need to amputate the leg.
The Claimant took legal advice in 1991, and a report was provided from a vascular surgeon in October 1992. The Claimant issued proceedings on the 10th December 1992, more than seven years after expiry of the primary limitation period.
Judgment:-
Lord Justice Stuart-Smith considered the Limitation Act 1980, and in particular Sections 11 and 14. He said that the injury was the loss of the leg and the cause of the injury was the surgeon’s advice. He referred to the case of Broadley v Guy Clapham [1993] 4 All ER 439 where the court said that the Claimant should know that he was suffering from something that was not the direct and inevitable consequence of the operation. In another case Smith v West Lancashire Health Authority [1995] PIQR 514 which concerned a course a treatment that had not worked, the court had said that simply telling the Claimant that the treatment had not worked, was not the same as imbuing the Claimant with a knowledge of an omission to operate. Stuart-Smith LJ also referred to Hallam-Eames v Merrett Syndicates Limited unreported, CA Transcript 13 January 1995 where Hoffman LJ had said that the Claimant did not have to know that he had a cause of action or that the Defendant’s acts could be characterised in law as negligent of falling short of some standard of professional or other behaviour. He must have known the facts which could be fairly described as constituting the negligence of which he complains.
Counsel for the Defendant had relied upon two cases, Davies v Ministry of Defence CA 26.7.85 (unreported) was the first. In that case May LJ had said that the construction “attributable” in Section 14(1)(b) of the 1980 Act meant “capable of being attributed to”. That approach was approved and adopted by the Court of Appeal in Wilkinson v Ancliff (BLT) Ltd [1986] 3 All ER 427. He also relied upon the case of Dobbie v Medway Health Authority [1994] 1 WLR 1234 where Sir Thomas Bingham MR said that time started to run against the Claimant when he knew that the personal injury on which he founded his claim was capable of being attributed to something done or not done by the Defendant whom he wished to sue.
Stuart-Smith LJ said that all the Claimant needed to know was that there was a period of time between the first and second operations, that the second operation was not successful, and that in consequence, his leg was amputated. Counsel for the Defendant also referred to another case, Jones v Liverpool Health Authority CA unreported Transcript 19 July 1995. This was a case where there was a delay in taking corrective treatment, although the corrective treatment itself was not negligent. However in that case, the Claimant had been advised later by the surgeon that the treatment was not negligent. He did not know that he had a possible cause of action. The Court of Appeal said that if a Claimant receives an expert report to the effect that he does not have a cause of action, and years later, he is advised by another expert that he may have a cause of action, he cannot claim thereafter that he did not gain knowledge for the purposes of sections 11 and 14 of the 1980 Act.
Stuart-Smith LJ said that there was a distinction between causation and negligence. The first was relevant to section 14(1) of the 1980 Act, the second was not. In this case, the trial judge was right to hold that the Claimant had no actual knowledge. On the issue of constructive knowledge, the Claimant did have such knowledge.
Stuart-Smith LJ asked the question – could a person who has effectively made the decision not to ask why an operation had not been a success, later change his mind and then seek advice which revealed all along that he had a claim? Stuart Smith LJ thought not as any other construction would make the 1980 Act unworkable. In any event, Section 33 gave the court an ultimate discretion to disapply limitation in such cases.
Another example might be where the initial injury, although significant, appeared to be not so serious as to affect the Claimant’s quality of life but subsequently proved to be much more serious. The fact that the Claimant initially did nothing to find out the cause of the injury should not preclude him from making a claim. Alternatively something might turn on the advice or information that the Claimant was given by the Defendant’s employees. There was nothing of the sort here.
In the judgment of Stuart-Smith, a reasonable man in the position of the deceased, who knew that the operation had been unsuccessful, and that he had suffered a major injury which would seriously affect his enjoyment of life in the future, should and would have taken advice reasonably promptly.
Stuart-Smith had difficulty in seeing how the individual character and intelligence of the Claimant could be relevant in an objective test of “reasonably.” It did not seem to him that the fact that a Claimant was more trusting, incurious, indolent, resigned or uncomplaining by nature could be a relevant characteristic. In this case the Claimant did have constructive knowledge.
Therefore section 33 of the 1980 Act fell to be considered. Subsection 4 clearly contemplated that an action could be brought in respect of personal injuries sustained by a person who was deceased before the claim was brought. Stuart-Smith could see now reason why it should not equally apply if the Claimant died after an action was brought.
However it would be wrong to exercise section 33 discretion in the Claimant’s favour. The Defendant Health Authority had submitted that as a result of certain insurance arrangements, the Health Authority would have to bear a greater share of the damages and costs that it would have done previously. Secondly medical records could not be found. It was not easy for experts to consider the proper standard of care so long ago.
There was also the strength of the Claimant’s case. In the case of Nash v Eli Lilly [1993] 1 WLR 782 the court said that if it was shown that the claim was a poor case lacking in merit, there might be significant and relevant prejudice to the Defendants if the limitation provisions were disapplied.
Therefore the court should not exercise section 33 discretion in this case.
Lord Justice Evans agreed with Stuart-Smith LJ to the effect that actual knowledge had not been proved against the Claimant. In relation to constructive knowledge, this was a difficult issue. There must have been some indication to the Claimant that something had gone wrong. Whilst that was not actual knowledge, it may have been reasonable for the Claimant to take alternative advice.
Since there was a wide discretionary power to extend the period of limitation in certain circumstances, there was no clear requirement to construct the knowledge provisions in Section 14 narrowly or in favour of Claimants. An objective standard would apply to Section 14(3). It was not appropriate to regard this issue in terms of a decision made consciously or unconsciously by the Claimant. If the question was, whether objectively or reasonably, he could be expected to have obtained further advice, then Evans LJ did not see that his actual mental processes were relevant at all.
In relation to Section 33, Evans LJ agreed that discretion should not be exercised in the Claimant’s favour. The principal factor was the weakness of the Claimant’s claim.
Lord Justice Roch disagreed on the issue of constructive knowledge. In the case of Nash v Eli Lilly the court had said that the proper approach was to determine what this Claimant should have observed or ascertained, whilst asking no more of him than is reasonable. The standard of reasonableness in connection with the observations and/or the effort to ascertain were therefore finally objective, but should be qualified to take into consideration the position, and circumstances and character of the Claimant. Roch LJ said that he had difficulty with this statement, since an objective standard should not include the individual circumstances of the Claimant. However that decision came from the Court of Appeal, and this court was bound by it.
As the trial judge had to take account of the Claimant’s position, circumstances and character, Roch LJ was not prepared to hold that he was clearly wrong in the conclusion that he had reached, namely that the Claimant did not have constructive knowledge until much later when he approached solicitors.
The fact that the Claimant had approached solicitors in 1991, did not provide evidence that it would have been reasonable for him to seek expert advice earlier.