THE MASTER OF THE ROLLS: The plaintiff issued her writ in this action on 5 May 1989 and amended it on 10 May. In the amended writ and in her statement of claim served in October 1990 she claimed damages for personal injury arising from the negligent performance of an operation on 27 April 1973. The defendant health authority was sued as the employer of the consultant surgeon who performed the operation.
In its defence the health authority pleaded that the plaintiff's claim arose more than 3 years before issue of proceedings and that her cause of action was accordingly statute-barred. Reliance was placed on sections 11 and 14 of the Limitation Act 1980.
The plaintiff in her reply denied that her action was statute-barred, but if it was she asked the court to exercise its discretion in her favour under section 33 of the Act.
In August 1991 these limitation issues were ordered to be tried as preliminary issues. They were so heard, and on 14 February 1992 Otton J determined both issues against the plaintiff, holding that her cause of action was statute-barred and declining to exercise his discretion in her favour under section 33.
The plaintiff appeals against both these rulings.
The facts
The facts were fully and carefully summarised by Otton J in his judgment. It is unnecessary for present purposes to give more than a brief outline.
In 1972 the plaintiff felt a lump in her left breast. She consulted her general practitioner and was eventually referred to a consultant surgeon who examined her and found a lump in the breast. He advised that she should have the lump excised. She was admitted to Sheppey General Hospital on 26 April 1973 to have the lump removed, with a view to its being the subject of diagnostic examination. There was an issue whether the plaintiff consented to anything more than the removal of the lump (namely, whether she also consented to mastectomy if the surgeon considered it necessary) but the judge assumed that her consent was limited to removal of the lump.
At operation on 27 April 1973 the consultant excised the lump, which appeared to him to be cancerous, and he proceeded to perform a simple left mastectomy. After operation the lump was sent for microscopic examination and found to be benign. The hospital authority admits that the lump was not examined microscopically before the breast was removed. Facilities for making such examination were not at the time available at the Sheppey General Hospital, but they were available at another hospital in Chatham.
The plaintiff had not expected her operation to involve more than removal of the lump, or such tissue as was needed for microscopic examination. When she came round from the anaesthetic she was horrified to find that the whole of her left breast had been removed. But she had no reason then to question the surgeon's judgment. When she learned the result of the microscopic examination she accepted the view of the surgeon and a nurse that she was very fortunate that the growth had not proved to be malignant.
The judge found, on very clear evidence, that the effect on the plaintiff of losing her breast had been "devastating". She had as a result suffered severe psychological illness, which had in turn affected her physical health and blighted her enjoyment of life.
In May 1988 the plaintiff's daughter told her of a radio programme describing a case similar to hers in which a court had held that the surgeon had been negligent in removing the breast. An article on the front page of the Sunday Times for 15 May 1988 reported the case. The plaintiff made contact with the radio station, and through it with an organisation representing the victims of medical accidents. In due course she consulted solicitors, who issued a writ (as already recorded) on 5 May 1989. In February 1990 a consultant surgeon of high standing advised the plaintiff that the breast should not have been removed until the lump had been excised and examined and found to be malignant. Based on this report, counsel drafted the plaintiff's statement of claim. Although the particulars of negligence were pleaded in a number of sub-paragraphs, the essential thrust of the case was that the breast should not have been removed until the lump had been microscopically examined and found to be malignant.
Limitation
The ordinary rule is that time begins to run against a claimant when a common law cause of action arises, and the cause of action becomes unenforceable if proceedings have not been started before expiry of a period of years prescribed by statute. This rule may have the harsh effect of defeating what would otherwise be unanswerable claims. But such rules have existed for centuries. They are no doubt designed in part to encourage potential claimants to prosecute their claims with reasonable expedition on pain of being unable to prosecute them at all. But they are also based on the belief that a time comes when, for better or worse, defendants should be effectively relieved from the risk of having to resist stale claims.
To this ordinary rule there are of course exceptions. The exception relevant for present purposes affects personal injury claimants. The need for an exception became clear when it was found that employees disabled by industrial disease did not know (and could not have known) that they suffered from the disease, still less that it was caused by their employers' process, until well after the 3-year limitation period for personal injuries had expired.
Statutory attempts to mitigate this problem did not prove satisfactory and in 1971 the Law Reform Committee were invited to reconsider the question. In its Twentieth Report (Interim Report on Limitation of Actions : in Personal Injury Claims, Cmnd 5630, May 1974) the Committee reviewed the previous history and certain suggested solutions. The Committee accepted that time should not begin to run before a claimant had knowledge (actual or constructive) both of his injured condition and of its having been caused by an act or omission of the defendant, but was concerned to decide whether the date of knowledge should arrive
(1)on the plaintiff acquiring knowledge of those facts; or
(2)on his acquiring knowledge of those facts and also that he has a worthwhile cause of action against the defendant; or
(3)at some intermediate point between these states of knowledge, as for example on his becoming aware, in the words of Lord Pearson "(as a matter of fact in the same manner as a jury would decide) that the defendants were at fault and that his injuries were attributable to their fault." See Central Asbestos Co Ltd v Dodd (1973) AC 518, 545.
For reasons given in the report, the Committee rejected (2). The Committee also rejected (3), taking the view that if there was to be an extension of time from the date of knowledge as of right such date must be capable of precise definition and that the concept of fault lacked the necessary precision. The Committee accordingly favoured (1). But it recognised that this test could cause hardship to prospective plaintiffs in a small number of cases, and advised that there should be a residual discretion in the court to extend time even when action had not been brought within 3 years of the date of knowledge as defined in (1). These recommendations were accepted : they found substantial expression in the Limitation Act 1975, and were in due course consolidated in the Limitation Act 1980.
The 1980 Act : sections 11 and 14.
These sections provide (so far as relevant to the present appeal) as follows :
"Special time limit for actions in respect of personal injuries
11.-(1) This section applies to any action for damages for negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or of provision made by or under a statute or independently of any contract or any such provision) where the damages claimed by the plaintiff for the negligence, nuisance or breach of duty consist of or include damages in respect of personal injuries to the plaintiff or any other person.
...
(3) An action to which this section applies shall not be brought after the expiration of the period applicable in accordance with subsection (4) or (5) below.
(4) Except where subsection (5) below applies, the period applicable is three years from-
(a)the date on which the cause of action accrued; or
(b)the date of knowledge (if later) of the person injured."
"Definition of date of knowledge for purposes of sections 11 and 12
14.-(1)... In sections 11 and 12 of this Act references to a person's date of knowledge are references to the date on which he first had knowledge of the following facts-
(a)that the injury in question was significant; and
(b)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; and ...
and knowledge that any acts or omissions did or did not, as a matter of law, involve negligence, nuisance or breach of duty is irrelevant.
(2) For the purposes of this section an injury is significant if the person whose date of knowledge is in question would reasonably have considered it sufficiently serious to justify his instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment.
(3) For the purposes of this section a person's knowledge includes knowledge which he might reasonably have been expected to acquire-
(a)from facts observable or ascertainable by him; or
(b)from facts ascertainable by him with the help of medical or other appropriate expert advice which it is reasonable for him to seek;
but a person shall not be fixed under this subsection with knowledge of a fact ascertainable only with the help of expert advice so long as he has taken all reasonable steps to obtain (and, where appropriate, to act on) that advice."
This special limitation regime applies to claims (such as the present) based in negligence for damages for personal injuries. It plainly modifies the ordinary rule (expressed in section 11(4)(a)) that time runs from the accrual of the cause of action.
The effect of sections 11(4)(b) and 14(1)(a) is to postpone the running of time until the claimant has knowledge of the personal injury on which he seeks to found his claim. That is "the injury in question". The word 'knowledge' should be given its natural meaning (Davis v Ministry of Defence, unreported, 26 July 1985, Court of Appeal Transcript No 413 of 1985). As Lord Donaldson of Lymington MR said in Halford v Brookes [1991] 1 WLR 428 at 443,
"In this context 'knowledge' clearly does not mean 'know for certain and beyond possibility of contradiction'. It does, 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.'"
This test is not in my judgment hard to apply. It involves ascertaining the personal injury on which the claim is founded and asking when the claimant knew of it. In the case of an insidious disease or a delayed result of a surgical mishap, this knowledge may come well after the suffering of the disease or the performance of the surgery. But more usually the claimant knows that he has suffered personal injury as soon or almost as soon as he does so.
Time does not begin to run against a claimant until he knows that the personal injury on which he founds his claim is significant within the definition in section 14(2). That gives rise to no issue in this appeal.
The effect of sections 11(4)(b) and 14(1)(b) is to postpone the running of time until the claimant has knowledge that the personal injury on which he founds his claim was wholly or partly attributable to the act or omission of the defendant on which his claim in negligence is founded. "Attributable to" was construed by May LJ in Davis to mean "capable of being attributed to" and not "caused by", and I see no reason to question that conclusion. It cannot plausibly be suggested that the words "act or omission" import any requirement that such act or omission should be actionable or tortious, since that would stultify the closing words of section 14(1) and would moreover flout the recommendation on which the legislation was admittedly founded. In Wilkinson v Ancliff (B.L.T.) Limited [1986] 1 WLR 1352 at 1362 H reference was made to a submission of counsel based on the use of the words "act or omission" rather than "conduct" in section 14(1)(b). I do not understand the court to have accepted that submission. But it is customary in discussing tortious liability to refer to acts and omissions, and I do not think the meaning of section 14(1)(b) would be any different had the reference been to conduct. Time starts to run against the claimant when he knows that the personal injury on which he founds his claim is capable of being attributed to something done or not done by the defendant whom he wishes to sue. This condition is not satisfied where a man knows that he has a disabling cough or shortness of breath but does not know that his injured condition has anything to do with his working conditions. It is satisfied when he knows that his injured condition is capable of being attributed to his working conditions, even though he has no inkling that his employer may have been at fault.
Authority on sections 11 and 14
Reference should be made to two recent decisions of this court in which these sections have been considered.
The first case was Nash v Eli Lilly & Co [1993] 1 WLR 782. In that case, a number of plaintiffs claimed damages based on side-effects suffered as a result of taking the drug Opren. Under the heading "Significant injury" the court accepted as valid a distinction between an expected, or accepted, side effect and an injurious and unacceptable consequence of taking a drug (791 E). In considering attributability, the court held (at 799 B) :
"It was not, in our judgment, the intention of Parliament to require for the purposes of section 11 and section 14 of the Act proof of knowledge of the terms in which it will be alleged that the act or omission of the defendants constituted negligence or breach of duty. What is required is knowledge of the essence of the act or omission to which the injury is attributable."
In Broadley v Guy Clapham & Co (1993) 4 Med. LR 328 the plaintiff suffered nerve palsy in her left leg, resulting in foot drop, following an operation on her knee. Balcombe LJ held (at 332) that the plaintiff's claim was statute-barred because she had, more than the prescribed period before the issue of proceedings, known that the operation had been carried out in such a way that something had gone wrong, causing injury to her foot, or alternatively that the operation had been carried out in such a way as to damage a nerve, thereby causing foot drop. Leggatt LJ, agreeing with Balcombe LJ and Hoffmann LJ, held (at 333) that the plaintiff had on the facts had constructive knowledge since she had had such specific knowledge, soon after the operation, of an act or omission which might amount to negligence as would have enabled her to investigate it timeously. He said :
"It is plain from the concluding words of section 14(1) that "knowledge that any acts or omissions did or did not, as a matter of law, involve negligence" is irrelevant. In my judgment the only function of the words "which is alleged to constitute negligence" is to point to the relevant act or omission to which the injury was attributable."
Hoffmann LJ rejected a submission that the plaintiff must know that the defendant's act or omission was capable of being attributed to some fault on his part, and said (at 333) :
"I think [counsel] was right when he said that the words "which is alleged to constitute negligence, nuisance or breach of duty" serve to identify the facts of which the plaintiff must have knowledge without implying that he should know that they constitute a breach of a rule, whether of law or some other code of behaviour. Section 14(1)(b) requires that one should look at the way the plaintiff puts his case, distil what he is complaining about and ask whether he had in broad terms knowledge of the facts on which that complaint is based."
These decisions are, I think, consistent with and supportive of the construction of the statutory language set out above, subject to one possible qualification. The requirement that the injury of which a plaintiff has knowledge should be "significant" is in my view directed solely to the quantum of the injury and not to the plaintiff's evaluation of its cause, nature or usualness. Time does not run against a plaintiff, even if he is 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. It is otherwise if the injury is reasonably to be considered as sufficiently serious within the statutory definition : time then runs (subject to the requirement of attributability) even if the plaintiff believes the injury to be normal or properly caused.
In some of the cases judges have used language suggesting that knowledge of fault is needed to start time running. For instance, in Stephen v Riverside Health Authority (1990) 1 Med. L.R. 261 at 267 Auld J said
"the question that I have to answer is "when did she first know that erythema moist spots etc, were capable of being attributed to excessive exposure to radiation caused by an improperly conducted mammography?"" [added emphasis].
In Bentley v Bristol & Western Health Authority (1991) 2 Med. L.R. 359 at 364, which was disapproved in Broadley v Guy Clapham, Hirst J held that there had to be knowledge of some conduct or failure which could affect the safety of the operation. In Nash v Eli Lilly & Co (1991) 2 Med LR 169 Hidden J described the act or omission complained of as
"providing the plaintiff with a drug which was unsafe in that it caused persistent photosensitivity and failing to take reasonable and proper steps to protect the plaintiff from such a condition or consequence". [added emphasis].
The situation is complicated when, as often happens, the plaintiff learns of the defendant's act or omission and of the criticism that it was negligent at the same time. But it is necessary to emphasise that knowledge of fault or negligence is not needed to start time running.
The present case : sections 11 and 14
The plaintiff knew when she came round from the anaesthetic that her breast had been removed and she learned very shortly afterwards that the lump which the surgeon had operated to excise had been found to be benign. But she was led to believe (distressed though she was) that the practice followed had been usual and proper, and indeed that she had in the circumstances every reason to count herself fortunate. Not until 1988 (at the earliest) did she know that excision of the lump for microscopic examination could and should have preceded removal of the breast. It was accordingly urged on her behalf that until then she lacked the requisite knowledge, since she lacked knowledge of the crucial act or omission of the surgeon on which her claim against the health authority in negligence is founded. Knowledge of injury in this context means knowledge that something has happened which is not an ordinary, normal result of surgery. There must be knowledge that something has gone wrong. The plaintiff did not gain that knowledge, it was said, until 1988 or even 1990.
Otton J rejected this argument. On her evidence he was entitled to conclude that the plaintiff knew within 3 years of the operation
(1)that she had been admitted for excision of a lump only;
(2)that her left breast had been removed;
(3)that the lump when examined had not been malignant but benign;
(4)that the decision to remove the breast had been taken before any microscopic test had been carried out;
(5)that there had been no facilities for microscopic examination at Sheppey Hospital;
(6)that she had not given her consent to the removal of her breast;
(7)that the removal of her breast had caused her acute and prolonged anger, distress and psychological damage as well as physical damage.
Echoing the language of some of the cases, the judge held :
"In my judgment, she had broad knowledge of sufficient facts to describe compendiously that her breast had been unnecessarily removed, that something had gone wrong and that this was due to the defendants' negligence and further (or in the alternative) that it had been removed without her consent. Even though she might not have had the knowledge to enable her counsel to draft a fully and comprehensively particularised statement of claim, in my view she had knowledge of the nature referred to in section 14(1)(b) sufficient to set time running against her both in negligence and trespass."
The judge's reasoning is in my view open to criticism in two respects :
(1) He was wrong to refer to the breast being "unnecessarily" removed, to something going wrong and to the health authority's negligence. These matters were on a correct construction of section 14 irrelevant.
(2) Section 11 does not apply to actions in trespass, for which no extension of time is in law permissible : Stubbings v Webb [1993] AC 498. The judge directed himself in accordance with authority as it stood when he gave judgment, and it was not until later that the House of Lords' decision altered the law.
But I am in complete agreement with the judge's conclusion. The personal injury on which the plaintiff seeks to found her claim is the removal of her breast and the psychological and physical harm which followed. She knew of this injury within hours, days or months of the operation and she at all times reasonably considered it to be significant. She knew from the beginning that this personal injury was capable of being attributed to, or more bluntly was the clear and direct result of, an act or omission of the health authority. What she did not appreciate until later was that the health authority's act or omission was (arguably) negligent or blameworthy. But her want of that knowledge did not stop time beginning to run.
The judge was right to hold that the plaintiff's claim was statute-barred and I would dismiss the appeal against that finding.
Constructive knowledge : section 14(3)
Since the judge held the plaintiff to have had actual knowledge he held it strictly unnecessary to consider whether she had constructive knowledge. But in case his primary conclusion was displaced, he considered this question and gave reasons for concluding that she had. I do not in any way dissent from these reasons, but since I share his primary conclusion I need not explore this aspect.
The exercise of discretion : section 33
Section 33 provides, so far as material, as follows :
"33.-(1) If it appears to the court that it would be equitable to allow an action to proceed having regard to the degree to which-
(a)the provisions of section 11... or 12 of this Act prejudice the plaintiff or any person whom he represents; and
(b)any decision of the court under this subsection would prejudice the defendant or any person whom he represents;
the court may direct that those provisions shall not apply to the action, or shall not apply to any specified cause of action to which the action relates.
...
(3) In acting under this section the court shall have regard to all the circumstances of the case and in particular to-
(a)the length of, and the reasons for, the delay on the part of the plaintiff;
(b)the extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the plaintiff or the defendant is or is likely to be less cogent than if the action had been brought within the time allowed by section 11... or (as the case may be) by section 12;
(c)the conduct of the defendant after the cause of action arose, including the extent (if any) to which he responded to requests reasonably made by the plaintiff for information or inspection for the purpose of ascertaining facts which were or might be relevant to the plaintiff's cause of action against the defendant;
(d)the duration of any disability of the plaintiff arising after the date of the accrual of the cause of action;
(e)the extent to which the plaintiff acted promptly and reasonably once he knew whether or not the act or omission of the defendant, to which the injury was attributable, might be capable at that time of giving rise to an action for damages;
(f)the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received.
..."
In reliance on these provisions it was argued that the court's discretion should be exercised in the plaintiff's favour. The delay in bringing proceedings was caused by her belief, fostered by the health authority, that she had been properly treated. Most of the salient facts were not in dispute and most of the evidence was documentary. The case could be tried without prejudice to the health authority despite the lapse of time.
The judge did not consider it equitable to allow the action to proceed. He held that the evidence would be less cogent than if the action had been brought timeously, that the health authority would be prejudiced on the issue of consent, that the plaintiff should reasonably have taken advice sooner and that the time had come when the surgeon should not have to meet this complaint.
I approach this aspect on the basis that the plaintiff is a grievously injured woman who has suffered much and whose claim, if allowed to proceed, might prove to be very strong. But the delay in this case, after the date of actual knowledge, is very lengthy indeed. The plaintiff could have taken advice and issued proceedings years before she did. Sympathetic though anyone reading these papers must be to the plaintiff, it would in my judgment (as in that of the judge) be unfair to require the health authority to face this claim arising out of events which took place so long ago.
I would dismiss the appeal on this ground also.
LORD JUSTICE BELDAM:For many years, as Sir Thomas Bingham the Master of the Rolls has pointed out, a plaintiff has been required by statute to commence proceedings before the expiry of a specified period from the date his cause of action accrued. In some circumstances courts of equity provided relief from the strict application of the rule by providing that time did not begin to run until the cause of action was or should have been discovered. So, for example, where his right of action was concealed by equitable fraud or where his action was for relief from the consequences of a mistake, the period of limitation did not begin to run until the plaintiff had discovered the fraud, concealment or mistake or could with reasonable diligence have discovered it. See Limitation Act 1939 as amended by the Limitation (Amendment) Act 1980.
By 1963 it had become apparent that in actions for personal injury circumstances could occur which made it equally unfair to hold a plaintiff to the normal period of limitation. The injustice of an inflexible period was demonstrated by the case of Cartledge & Others v. Jopling & Sons Ltd. [1962] 1 QB 189 and [1963] AC 758. Due to the acts or omissions of the defendant, the plaintiffs contracted an insidious disease which was symptomless until after the period of limitation had expired. Then catastrophic symptoms developed for which they had no remedy. Other circumstances causing injustice appeared. The plaintiff suffered symptoms within the period of limitation but did not know that they were attributable to any act or omission on the part of the defendant. Only after the expiry of the period did he become aware that acts or omissions of the defendant were responsible. This might be because until then medical science had not known that the symptoms could be caused by such acts or omissions; or the plaintiff might have sought medical advice but it was only later when the symptoms had become more serious that the necessary investigations were carried out which indicated that they were attributable to an act or omission of the defendant. In yet a further type of case the plaintiff may have suffered a trivial injury without any consequences of note as a result of an act or omission of the defendant. Some years later when the period of limitation had expired the injury gave rise to far more serious consequences. These problems led to the passing of the Limitation Act 1963 and to the provisions of the Limitation Act 1980 which apply in this case.
Mr Badenoch Q.C. for the plaintiff has sought to bring himself within the provisions of sec. 11 and sec. 14 of the Limitation Act 1980. Sec. 11 introduces a special time limit for actions in which the damages claimed for negligence, nuisance or breach of duty consist of or include damages "in respect of personal injuries to the plaintiff ..." Personal injuries are defined in sec. 38 so that unless the context otherwise requires:
""Personal injuries" includes any disease and any impairment of a person's physical or mental condition and "injury" and cognate expressions shall be construed accordingly."
The date of knowledge referred to in sec. 11 (4) (b) refers to the date on which he first had knowledge of the following facts:
(a)That the injury in question was significant; and
(b)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; ...
In the present case I agree with the Master of the Rolls that the injury in respect of which the plaintiff claims damages is the loss of her left breast and the severe psychological symptoms which followed. The act or omission of the defendant on which she relies is the act of the surgeon in removing the breast and the omission to carry out a test before doing so which would have indicated that the removal of her breast was unnecessary.
Thus the plaintiff had actual knowledge as required by sec. 14 within a few days of the operation being performed. In an attempt to escape from the conclusion that the plaintiff's claim is thus statute barred, Mr Badenoch Q.C. has advanced arguments based upon an interpretation of the word "injury" and of the words "act or omission" which he contends the court should apply by analogy with the interpretation put upon the words in other cases and in particular Nash v. Eli Lilly & Co. [1993] 1 WLR 782 and Broadly v. Guy Clapham & Co. [1993] 4 Medical Law Reports 328. His first argument is that the word "injury" in a case such as the plaintiff's must be given an interpretation which enables the court to distinguish between the normal or expected consequences of successful medical treatment and the consequences of faulty treatment. The man in the street, he argued, would not regard himself as "injured" by a successful operation. He would only regard himself as injured if he suffered consequences other than those normally to be attributed to the treatment.
I do not believe that the definition in sec. 38 (1) is capable of the expansion which Mr Badenoch seeks to give it.
The interpretation of "personal injuries" in sec. 38 (1), though plainly not exhaustive, does indicate that "injury" cannot be qualified by the addition of words implying its source or aetiology. Nor is there any need to import the perception of the reasonable patient.
The patient instanced by Mr Badenoch whose surgeon operates to remove the cause of the patient's symptoms but fails to do so will suffer "injury" because he will continue to suffer from the symptoms, his health will be impaired and he will need further operative treatment. Whilst he may not know that he has suffered this injury as quickly as a patient whose breast is removed when it need not have been, nevertheless it will not be long before the patient is aware that he has derived no benefit from the operation.
Nor is there any need in such a case to place a strained interpretation on the word "injury". Time does not begin to run against such a patient until he knows that it is attributable to an act or omission of the defendant.
Mr Badenoch's arguments do not convince me that the words of sec. 11 and 14 create any difficulty. I agree with the Master of the Rolls that insofar as it has been suggested that the judgments in some cases imply that the plaintiff must have some indication of fault or error in his treatment before he is aware that he has suffered injury, such a requirement is inconsistent with the clear words of sec. 14.
I also agree that, in the circumstances of this case, the learned judge was right in the exercise of his discretion not to disapply the provisions of sec. 11 having regard to the length of time which had elapsed. However I cannot agree with the judge that it as appropriate to take into account the factor which he took from the judgment of Lord Denning M.R. in Biss v. Lambeth, Southwark and Lewisham Health Authority (Teaching) [1978] 1 WLR 382 that there had been prejudice because the action had been having over the head of the attendant doctor for so many years. I do not see how such a consideration can apply to a doctor who does not know that any action is contemplated against him.
For these reasons, I agree that the appeal should be dismissed.
LORD JUSTICE STEYN: I agree with everything that Sir Thomas Bingham, the Master of the Rolls, and Lord Justice Beldam have said. I add only a few words of my own.
In the writ, which was issued on 5 May 1989, Mrs Dobbie claimed damages against the Health Authority on the basis of the removal of her left breast on 27 April 1973. Her cause of action accrued on the very day of the operation. Subject to Mrs Dobbie's date of knowledge as defined in the Limitation Act 1980, her claim became statute-barred three years later.
That brings me to section 14 (1) of the Limitation Act 1980. That provision defines "the date of knowledge". It is the date on which the injured person first had knowledge of four "facts". The provision is in conjunctive terms: it requires knowledge of all four facts. On the other hand, it is also exhaustive: no knowledge of any further facts is required. The four facts identified in section 1 are mirrored by the "facts" referred to in section 14 (3) which deals with constructive knowledge. In this case it is unnecessary to consider section 14 (3) further.
The first fact mentioned in section 14 (1) is that the injury in question was "significant" in the sense given to that word in section 14 (2). The injury in question must mean in this case the removal of Mrs Dobbie's left breast. It was undoubtedly a significant injury. That fact was known to Mrs Dobbie in April 1973. The second indispensable fact under section 14 (1) is defined as follows:
"(b)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;"
(My emphasis)
Again, the application of these words cause no difficulty in this case. Attributability does not mean legal responsibility. It can only refer to causation. It is alleged in the action that the surgeon was negligent in removing Mrs Dobbie's breast. She knew in April 1973 that her injury (the removal of her breast) was caused by the act of the surgeon, or in the words of the statute was attributable to him. She therefore had the necessary knowledge of fact (b) at the end of April 1973. Facts (c) and (d) involve knowledge of the identity of the defendant. It is conceded that Mrs Dobbie had knowledge of the identity of the defendant (the Health Authority) by the end of April 1973. Applying the plain meaning of the words of section 14 (1) to straightforward and indisputable facts, the consequence seems to follow that the claim became statute-barred at the end of April 1976.
Mr Badenoch, Q.C., who appeared before us, argued that there was a missing link in Mrs Dobbie's knowledge. He said that Mrs Dobbie only acquired all the necessary knowledge many years later when she received independent medical advice to the effect that the removal of her breast was not necessary. With due respect to counsel I have to say that his construction of section 14 (1) is an artificial and tortured one.
Mr Badenoch conceded that section 14 (1) does not require knowledge on the part of the injured person that his injury was caused by the negligence of the defendant. Counsel said that he felt compelled to make this concession because in 1974 the Law Reform Committee in its Twentieth Report (Cmnd 5630) categorically rejected the need for such knowledge, and the recommendations of the Law Reform Committee were enshrined in the legislation of 1975 and 1980. That is right. But more fundamentally the concession was inevitable because the plain language of section 14 (1) eliminates negligence as one of the facts of which the injured party must have knowledge.
That led counsel to tackle the matter in a different way. He said that the injured party must also know that "something had gone wrong". Pertinent to the present case he said that the injured party must know that the mastectomy was "unnecessary". He said that the injured party must appreciate the possibility that the operation was negligently performed. He said that the idea was inherent in the concept of an "injury" in section 14 (1). And he also said that the word "omission" in section 14 (1)(b) is capable of indicating what he described as "a qualitative element", i.e. something which possibly ought to have been done.
The simple answer to this construction is to be found in the ordinary meaning of the words of section 14 (1). The contextual meaning of "injury" in section 14 (1) is a personal injury without any further gloss other than the express definition of "significant" in section 14 (2). The word "act" does not by itself describe something which ought not to have been done. And it would be impossible to attach a qualitative element to "omission" but not to "act".
Stripped to its essentials counsel's argument is simply an attempt to argue that the injured party must know that he has a possible cause of action. That is not a requirement of section 14 (1). Moreover in 1974 the Law Reform Committee rejected a proposal that the injured party must have knowledge "that he has a worthwhile cause of action": par. 53. The present argument is simply a thinly veiled variant of a possible solution which was rejected by the Law Reform Committee in 1974 and by Parliament in 1975 and 1980.
Counsel submitted that the missing link is to be found in something short of knowledge of negligence. The missing link put forward is remarkably imprecise. In 1974 the Law Reform Committee considered an alternative solution, namely that the plaintiffs' knows "that the defendants were at fault". In rejecting this solution the Law Reform Committee commented (in par. 54):
"We were initially attracted by this solution; but, when we came to contemplate its embodiment in an Act of Parliament, we were driven to reject it because of the difficulties, which we consider insuperable, of satisfactory defining "fault" for this purpose. The concept of "fault", short of actionability, is, in our view, necessarily imprecise because it contains a considerable subjective element. If a concept is imprecise, any definition of it must (assuming that it is practicable at all) itself be imprecise. Yet, if one is aiming at a date of knowledge which leads to an extension of time as a right, that date must be precisely defined."
(My emphasis)
The solution so rejected bears a marked similarity to the interpretation now put forward by counsel. But the Law Reform Committee's emphasis on precision in a provision which leads to an extension of time as of right is equally important. There is no room in such a provision for reading words into it which are incapable of precise definition.
For all these reasons I reject Mr Badenoch's interpretation of section 14 (1). The claim is statute barred.
The Judge's decision to reject the application to extend time under section 33 (1) was plainly right. The length of the delay was too great.
I would also dismiss the appeal.
Order: Appeal dismissed with costs. Order for Legal Aid taxation to be suspended for ten weeks to enable the Legal Aid Authority to make representations if thought appropriate. Application for leave to appeal to the House of Lords refused.
