THE DATE OF KNOWLEDGE AND SECTION 33: A CASE THAT CLINICAL AND PROFESSIONAL NEGLIGENCE LAWYERS PROBABLY NEED TO READ

In Rayner -v- Wolferstans & Medway NHS Foundation Trust [2015] EWHC 2957 (QB) Mr Justice Wilkie carried out a comprehensive review of the law relating to date of knowledge and Section 33 of the Limitation Action 1980.  It also touches on the limitation period in professional negligence claims. It is a case where the claimant’s action was saved by the court making an order under s.33 of the Limitation Act 1980.

THE CASE

  • The claimant gave birth in 2004 and suffered complications after that birth.
  • In 2004 she instructed Wolferstans to consider a negligence claim again the Medway NHS Foundation Trust.
  • There was an agreement between Wolferstans and Medway, that the limitation period be extended to 2007.  However public funding was withdrawn and no proceedings were issued.
  • In 2010 the claimant instructed solicitors to bring a claim against  Wolferstans.
  • During the course of obtaining medical evidence in that action it became clear that there was an explanation for the claimant’s symptoms which indicated negligence on the part of Medway (and which had not been considered earlier).
  • When proceedings were issued against Wolferstans these were defended, among other things, on the basis that the claim against them was statute barred, however the claim against Medway was not statute barred and/or the claimant could rely on Section 33.
  • The claimant then issued proceedings against Medway.

KEY POINTS

  • The date of knowledge of the clinical negligence claim arose in 2004 even though the claimant did not know of the precise mechanism until much later.
  • The claim in contract against Wolferstans was statute barred.
  • It was equitable to allow the claimant’s claim against Medway to continue and make an order under Section 33 of the Limitation Act 1980.

THE ISSUES

A number of preliminary issues were heard which related to:

  • The claimant’s date of knowledge of an action against Medway.
  • Was the claim against Wolferstans statute barred.
  • Could the claimant obtain an order under Section 33 in the claim against Medway.

CONCLUSIONS ON THE DATE OF KNOWLEDGE OF THE ACTION AGAINST MEDWAY

  • Although the claimant did not know the precise mechanism of the cause of her injury in 2004 her advisers were not “barking up the wrong tree”.
  • The claimant had a firm belief from July 2004 that her injuries had been caused by something that had gone wrong in the administration of the epidural.
  • The claimant’s date of knowledge was, therefore July 2004.
  • The claimant had not acquired knowledge at the later date when the precise mechanism became clear.
THE JUDGMENT
  1. In my judgment, this is not a case in which the claimant and her legal and medical advisors were “barking up the wrong tree” from the outset until the true position was revealed to Dr Bogod in April 2012. On the contrary, from, at the latest, the 22nd July 2004, the claimant had a firm belief that her injuries had been caused by something that had gone wrong in the administration of the epidural. She attributed it to a mechanism which involved the insertion of the needle to the extent that it triggered the injuries. That much was supported by her medical advisers at that stage. The inadvertent dural puncture has been present as the likely mechanism resulting in what went catastrophically wrong from that early stage. From that point the precise mechanism by which the dural puncture led to the injuries was a matter of conjecture and uncertainty as evidenced by the contents of Dr Bogod’s first report and it was not until diagnosis of arachnoiditis was confirmed by the MRI scan in 2010 and was further processed by Dr Bogod in his second report in 2012 that the precise mechanism whereby the injuries had been sustained could authoritatively be described by him in the form which is reflected in the pleaded cases against Medway and Wolferstans.
  2. Applying the various formulations which the appellate authorities have provided for the assistance of the courts in applying sections 11 and 14, in my judgment, this is a case in which the claimant did from, at the latest 22nd July 2004, have the requisite level of knowledge, in terms of the firmness of her beliefs and the substance of her knowledge, as to the act or omission alleged to constitute negligence to which her injuries were attributable. It was, the administration of epidural and, in particular the insertion of the needle. True it is that she was not, until April 2012, in possession of knowledge which would enable her precisely to describe and plead the mechanism whereby her injuries were sustained and the precise form of negligence which, it is said, must have occurred so as to cause her injury. Such a level of detail and precise knowledge, however, in my judgment, goes beyond the level of knowledge which is required by section 11 and section 14, as explained in the authorities, to cause time to start to run. She had a broad knowledge of the essence of the causally relevant act or omission to which the injury is attributable sufficient for her to embark on an investigation of whether or not she had a claim. Thus I am satisfied the level of knowledge evidenced in her statement of 22nd July 2004 was sufficient, pursuant to section 11 and section 14 to cause time to start to run.
  3. I also conclude that the development of the formulation, in April 2012, by Dr Bogod of the precise mechanism through which the injuries were caused does not evidence a situation in which the claimant and her advisors were barking up the wrong tree until then.

CONCLUSIONS ON THE CLAIM AGAINST WOLFERSTANS

  • The action against Wolferstans, in contract, was statute barred.
  • The cause of action arose when the claimant was told she had no viable claim.
  • The breach was not a continuing breach which arose fresh day by day.
THE JUDGMENT
  1. It is common ground that, so far as the claim against Wolferstans is a tortious one, that claim is not statute-barred. It is accepted that the damage sustained by the claimant, namely the loss of the chance of successfully suing Medway, did not occur until 7th September 2007 when the final extension period granted by Medway expired without renewal, at which point, in the light of my decision on Question 1, the claim against Medway became statute-barred (subject to any decision I may make under section 33). As the cause of action in tort accrues only when the damage occurs then the claim instituted by the claimant against Wolferstans on 2nd September 2013 fell within the six-year limitation period, starting on the 7thSeptember 2007, provided for by section 2 of the Limitation Act 1980.
  2. The limitation period is not necessarily the same for a claim brought in contract based on the same underlying facts. The cause of action in contract accrues when the breach of contract occurs and, even though that breach may be remediable, once time has started, it continues, unless it can be said that the breach of contact is of a continuing nature. (Bell v Peter Browne)
  3. The breach of contract contended for by the claimant against Wolferstans is, effectively the giving of advice that she had no good claim against Medway and that she should discontinue her claim and, as a consequence, failing to institute proceedings in time. This was first tendered orally on 24th July. It was then tendered in writing on 26th July 2007 and was finally reiterated on 9th August 2007. It was acted on by the claimant 15thAugust 2007 when she emailed a copy of her signed form of authority instructing Wolferstans to discontinue her clinical negligence claim and to discharge her public funding certificate.
  4. Thereafter the retainer of Wolferstans as the claimant’s solicitors may have continued until 7th September 2007, when the Legal Services Commission resolved to discharge the claimant’s certificate of public funding and thereafter communicated that fact to Wolferstans.
  5. In my judgment time began to run on the 24th July 2007 when advice, alleged to be in breach of contract was given. Time began to run again on 26th July 2007 when, for a second time, the same advice was given in written form. It began to run again on 9th August 2007 when, for the third time, the same advice was tendered. On this occasion it was acted on by the claimant by her signing and, on 15th August, returning the form giving instructions in accordance with that advice. At that point Wolferstans could not, in accordance with the claimant’s instructions, have instituted proceedings against Medway. Thereafter, although the breach of contract (if it was such) was remediable, it was not a continuing breach which arose afresh day by day so as to give rise to the commencement of a fresh limitation period on each day that passed.
  6. It follows, therefore, that the institution by the claimant of her claim alleging breach of contract against Wolferstans on 2nd September 2013 fell outside the limitation period of six years provided for by section 5 and is time-barred.

THE APPLICATION UNDER SECTION 33

  • The contemporaneous accounts were already on record.
  • Witnesses were unlikely to be able to add anything to their notes which goes to the issue of negligence.
  • Medway had an opportunity to investigate the matter when the possibility of an action was first raised in 2004.
  • It was appropriate to exercise the court’s discretion under Section 33.
THE JUDGMENT ON SECTION 33
  1. I have found that the claimant is prejudiced by the provisions of section 11 which, unless I were to exercise my discretion under section 33, prevent her bringing her claim against Medway. I also find that, were I to make a section 33 order, it would prejudice the defendant because it would have to respond to a claim which, but for the order, it would not have to face because it is time-barred. The burden is on the claimant to show that it is equitable for me to make the order where she has failed to commence her proceedings against Medway in time. I have to consider the degree of prejudice to either side and I must have regard to all the circumstances in particular those listed in subsection (3) which are relevant.
  2. I have concluded that the claimant is not responsible for the delay in commencing the proceedings in time or thereafter until 28th August 2014. In this case what particularly exercises me is the question whether Medway’s ability to defend the claim is so handicapped by the passage of time since the expiration of the time limit that the claimant is unable to establish that it would be equitable to permit her now to pursue her claim.
  3. In my judgment, whilst there must inevitably be some prejudice because of its likely inability to call as witnesses those who were in attendance, I also have regard to the fact that their contemporaneous accounts are already on record. I find that, given the nature of the claim, they would have been highly unlikely to be able to add anything to their notes which goes to the issue of negligence. The claimant’s case is that contamination occurred unknown to those present and involved. Medway can adduce evidence, if it so wishes, of systems, procedures and protocols, to answer the contention that contamination must have occurred by way of negligence. Medway is not handicapped in adducing expert evidence, if it sees fit, to call into question the conclusions of Dr Bogod in his second report. Medway had the opportunity, if it saw fit, to obtain evidence from those who were present and involved on 5th January 2004 but chose not to do so, though it did obtain evidence from others who were in a supervisory position or were involved at a later stage.
  4. The burden of proof is on the claimant. She is seeking an indulgence having not commenced the proceedings in time. I have to reach a conclusion which is fair both to the claimant and the defendant, not just to the claimant.
  5. In my judgment, having had regard to all the circumstances and, in particular, those listed in section 33 (3), it is equitable to allow this action to proceed by directing that section 11 of the Limitation Act 1980 shall not apply to this claim brought against Medway.
  6. The claimant is and has been assiduous in investigating and pursuing her claim. The precise mechanism which the claimant contends gave rise to her injuries, arising out of the administering of the epidural in circumstances pointing to the defendant’s negligence, did not become apparent until April 2012. There is no appropriate alternative remedy for the claimant by proceeding against Wolferstans. The way the claimant now puts her case, based on the doctrine of “Res Ipsa Loquitur,” means that main burden of the debate before the court will be undertaken by medical experts. There is already sufficient contemporaneous written material from witnesses on both sides which will enable the court to make findings on what occurred on 5th January 2004. The nature of the claim is that negligence was inadvertent and that none of the participants in the procedure would have realised that contamination had occurred. Thus it is highly unlikely that any of those directly present would be in a position to add materially to what they noted at the time. In any event, Medway had the opportunity to obtain comments from those directly present at the time and chose not to do so, though it did take the opportunity to obtain from others. Medway can still adduce evidence of systems, procedures and protocols and from its own expert witnesses to seek to answer the claimant’s case. Thus, the prejudice to Medway by now having to defend this claim is substantially outweighed by the prejudice to the claimant if she were now unable to pursue her claim. In my judgment she has discharged the burden upon her to demonstrate that it is equitable to allow her action against Medway to proceed by my exercising the discretion under section 33 to direct that section 11 of the Limitation Act 1980 shall not apply to the action brought by the claimant against Medway.
  7. Pursuant to section 33 of the Limitation Act 1980, I direct that section 11 of the Limitation Act 1980 shall not apply to the action brought by the claimant against Medway.

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