WHITFIELD V NORTH DURHAM HEALTH AUTHORITY 15TH DECEMBER 1994 UNREPORTED COURT OF APPEAL
FACTS:-
In May 1985, the Claimant, then aged 27, underwent an operation at Dryburn Hospital for removal of a lump from her neck. During the course of the operation, the surgeon severed a brachial nerve, with the result that the Claimant now had one arm permanently paralysed. It transpired that the lump was not in fact malignant. She approached Action for Victims of Medical Accidents who sent a letter on her behalf to the Defendant in June 1985. She approached solicitors in 1987 and they issued proceedings in December 1987 against the surgeon personally and the health authority. However these solicitors advised her in May 1988 that she had no claim. She then approached other solicitors who requested the file, but did not receive it until February 1989 by which time the proceedings had expired. They then issued proceedings in March 1992, this time against the health authority in respect of negligence on the part of both the surgeon and the cytologist who had allegedly misread the report on the lump before it was removed.
The trial judge ruled that the Claimant’s date of knowledge for the purposes of the Limitation Act 1980 was June 1985 for the cytologist and December 1987 for the surgeon. However discretion was exercised under Section 33 in the Claimant’s favour, but only so far as the cytologist’s negligence. He felt that he was precluded by the case of Walkley v Precisions Forgings Ltd [1979] 1 WLR 606 from extending the order to the surgeon’s negligence because the earlier set of proceedings, issued against that surgeon within the limitation period had neither been served nor made the subject of any application for renewal.
Both parties appealed.
JUDGMENT:-
Lord Justice Waite said that counsel were agreed that Section 33 had to be read as incorporating one underlying principle. In the process of assessing equity and balancing prejudice, a party’s action or inaction could not be divorced from the acts or omissions of his legal representative.
Waite LJ recited the facts of Walkley v Precisions Forgings Ltd [1979] 1 WLR 606 where the House of Lords had held that once a Claimant had started an action within the limitation period, it would only be in the most exceptional circumstances that he would be able to bring himself within section 33 of the Limitation Act 1980 in respect of a second action.
In relation to the issue of date of knowledge as to the surgeon’s alleged negligence, Waite LJ said that the authorities required that the court should look to the essence of the complaint and inquire how far the Claimant had knowledge in broad terms of the facts on which it was based. The trial judge was wrong to treat the issue of proceedings in 1987 as determinative of “knowledge”. However there was no reason to attach to those proceedings, significance as an index of knowledge.
In relation to section 33, Waite LJ said that the trial judge had been right to hold that he was precluded from exercising jurisdiction under section 33 in the case of the surgeon by the decision in Walkley.
In relation to the claim against the cytologist, the trial judge had accepted and held that the omission to include Dr Robinson’s mistaken reading of the cytology test in the negligence claimed in the 1987 proceedings was the result of an oversight on the part of the Claimant’s first solicitors. However if the first solicitors had acted properly, then the cytologist would have been named in the 1987 proceedings and Walkley would have applied to rule it out. It would not be “equitable” within the meaning of Section 33(1) to confer on the Claimant a windfall advantage from the incompetence of her own first solicitors. The trial judge should have considered this factor, but did not.
Waite LJ then considered the effect of the Crown Indemnity provisions, which came into force on the 1st January 1990. Affidavit evidence had been given by the Defendant health authority that if the claim had been handled with dilligence, it would have reached a concluded hearing before the 31st December 1989 and any damages awarded would have been met by the medical defence organisations of the two doctors concerned, instead of the authority. The trial judge accepted this point but had said that persons waiting for treatment might be prepared to wait longer, if it meant that the Claimant would get her damages sooner. The Defendant health authority had said that these comment relied too much on speculation and supposition. Waite LJ agreed and said that such reasons could not properly include an assumption of altruism.
In relation to delay, Waite LJ said that the judge was wrong to have looked uncritically at the delays for which the Claimant’s current solicitors were responsible. The trial judge had also said that the “greater hardship” would fall on the Claimant. Waite LJ said that the outcome of the balancing exercise under section 33 was not to be determined on comparative scales of hardship, but on equity. In determining such a question, there could be no severance of the Claimant’s conduct from that of her advisers.
In relation to the expert evidence, the histological slide on which the cytologist relied was still available. However the court would still have to reconstruct the scene as it had been in the laboratory in 1985, in the light of medical opinion at that time. The trial judge had held that this was of no weight, but in Waite LJ’s view, he was wrong to do so.
Waite LJ said that the judge’s discretion was found to have been misdirected. The Court of Appeal would examine those factors anew, and in his view, it would be inequitable for section 33 to be exercised in the Claimant’s favour. Waite LJ added that his conclusion would have been the same if the claim against the surgeon had been allowed through. Again the surgeon would have difficulty recalling what had happened some ten years previously.
FACTS:-
In May 1985, the Claimant, then aged 27, underwent an operation at Dryburn Hospital for removal of a lump from her neck. During the course of the operation, the surgeon severed a brachial nerve, with the result that the Claimant now had one arm permanently paralysed. It transpired that the lump was not in fact malignant. She approached Action for Victims of Medical Accidents who sent a letter on her behalf to the Defendant in June 1985. She approached solicitors in 1987 and they issued proceedings in December 1987 against the surgeon personally and the health authority. However these solicitors advised her in May 1988 that she had no claim. She then approached other solicitors who requested the file, but did not receive it until February 1989 by which time the proceedings had expired. They then issued proceedings in March 1992, this time against the health authority in respect of negligence on the part of both the surgeon and the cytologist who had allegedly misread the report on the lump before it was removed.
The trial judge ruled that the Claimant’s date of knowledge for the purposes of the Limitation Act 1980 was June 1985 for the cytologist and December 1987 for the surgeon. However discretion was exercised under Section 33 in the Claimant’s favour, but only so far as the cytologist’s negligence. He felt that he was precluded by the case of Walkley v Precisions Forgings Ltd [1979] 1 WLR 606 from extending the order to the surgeon’s negligence because the earlier set of proceedings, issued against that surgeon within the limitation period had neither been served nor made the subject of any application for renewal.
Both parties appealed.
JUDGMENT:-
Lord Justice Waite said that counsel were agreed that Section 33 had to be read as incorporating one underlying principle. In the process of assessing equity and balancing prejudice, a party’s action or inaction could not be divorced from the acts or omissions of his legal representative.
Waite LJ recited the facts of Walkley v Precisions Forgings Ltd [1979] 1 WLR 606 where the House of Lords had held that once a Claimant had started an action within the limitation period, it would only be in the most exceptional circumstances that he would be able to bring himself within section 33 of the Limitation Act 1980 in respect of a second action.
In relation to the issue of date of knowledge as to the surgeon’s alleged negligence, Waite LJ said that the authorities required that the court should look to the essence of the complaint and inquire how far the Claimant had knowledge in broad terms of the facts on which it was based. The trial judge was wrong to treat the issue of proceedings in 1987 as determinative of “knowledge”. However there was no reason to attach to those proceedings, significance as an index of knowledge.
In relation to section 33, Waite LJ said that the trial judge had been right to hold that he was precluded from exercising jurisdiction under section 33 in the case of the surgeon by the decision in Walkley.
In relation to the claim against the cytologist, the trial judge had accepted and held that the omission to include Dr Robinson’s mistaken reading of the cytology test in the negligence claimed in the 1987 proceedings was the result of an oversight on the part of the Claimant’s first solicitors. However if the first solicitors had acted properly, then the cytologist would have been named in the 1987 proceedings and Walkley would have applied to rule it out. It would not be “equitable” within the meaning of Section 33(1) to confer on the Claimant a windfall advantage from the incompetence of her own first solicitors. The trial judge should have considered this factor, but did not.
Waite LJ then considered the effect of the Crown Indemnity provisions, which came into force on the 1st January 1990. Affidavit evidence had been given by the Defendant health authority that if the claim had been handled with dilligence, it would have reached a concluded hearing before the 31st December 1989 and any damages awarded would have been met by the medical defence organisations of the two doctors concerned, instead of the authority. The trial judge accepted this point but had said that persons waiting for treatment might be prepared to wait longer, if it meant that the Claimant would get her damages sooner. The Defendant health authority had said that these comment relied too much on speculation and supposition. Waite LJ agreed and said that such reasons could not properly include an assumption of altruism.
In relation to delay, Waite LJ said that the judge was wrong to have looked uncritically at the delays for which the Claimant’s current solicitors were responsible. The trial judge had also said that the “greater hardship” would fall on the Claimant. Waite LJ said that the outcome of the balancing exercise under section 33 was not to be determined on comparative scales of hardship, but on equity. In determining such a question, there could be no severance of the Claimant’s conduct from that of her advisers.
In relation to the expert evidence, the histological slide on which the cytologist relied was still available. However the court would still have to reconstruct the scene as it had been in the laboratory in 1985, in the light of medical opinion at that time. The trial judge had held that this was of no weight, but in Waite LJ’s view, he was wrong to do so.
Waite LJ said that the judge’s discretion was found to have been misdirected. The Court of Appeal would examine those factors anew, and in his view, it would be inequitable for section 33 to be exercised in the Claimant’s favour. Waite LJ added that his conclusion would have been the same if the claim against the surgeon had been allowed through. Again the surgeon would have difficulty recalling what had happened some ten years previously.