COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
(HIS HONOUR JUDGE P BAKER, QC)
B e f o r e :
LORD JUSTICE EVANS
LORD JUSTICE ROCH
| NELSON FORBES
|WANDSWORTH HEALTH AUTHORITY
London WC2 Tel: 0171 404 7464 Official Shorthand Writers to the Court)
MR CHRISTOPHER LIMB (Instructed by Messrs Hepsonstalls, 7-13 Gladstone Terrace, North Humberside) appeared on behalf of the Respondent
Crown Copyright ©
"(1) This section applies to any action for damages for negligence....where the damages claimed by the plaintiff for the negligence....consist of or include damages in respect of personal injury.
(3) An action to which this section applies shall not be brought after the expiration of the period applicable in accordance with subsections (4) or (5) below.
(4) Except where subsection (5) below applies, the period applicable is three years from -
(a) the date when the cause of action accrued;
(b) the date of knowledge (if later) of the person injured."
"(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 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."
"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)."
"As earlier indicated, the omission alleged in this case was essentially the omission to operate promptly. It was that omission which allegedly constituted negligence, together with the failure properly to diagnose. When did the patient first have knowledge of that omission? The reality is that he did not know that there had been an omission to operate at all until he was so advised by Mr. Downie to that effect. True, he knew that he had not had an operation on or about 12 November 1981, but that knowledge cannot, in my judgment, be knowledge of an omission "which is alleged to constitute negligence". One cannot know of an omission without knowing what it is that was omitted. In this case, that was an operation to reduce the fracture dislocations, as opposed to conservative treatment. Simply to tell the plaintiff that the first course of treatment had not worked, is not the same as imbuing the plaintiff with a knowledge of an omission to operate."
"In our judgment this is an over-simplification of the reasoning in Broadley and Dobbie if all that was necessary was that a plaintiff should have known that the damage was attributable to an act or omission of the defendant, the statute would have said so. Instead, it speaks of the damage being attributable to "the act or omission which is alleged to constitute negligence". In other words, the act or omission of which the plaintiff must have knowledge must be that which is causally relevant for the purposes of an allegation of negligence."
"The plaintiff does not have to know that he has a cause of action or that the defendant's acts can be characterised in law as negligent or falling short of some standard of professional or other behaviour. But, as Hoffmann L.J. said in Broadley, the words `which is alleged to constitute negligence' serve to identify the facts of which the plaintiff must have knowledge. He must have known the facts which can fairly be described as constituting the negligence of which he complains. It may be that knowledge of such facts will also serve to bring home to him the fact that the defendant has been negligent or at fault. But that is not in itself a reason for saying that he need not have known them."
"It cannot be 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 (BLT) Ltd.  1 WLR 1352, 1362H, 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."
"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"."
"To use Hoffmann L.J.'s phrase in Broadley v. Clapham Health Authority, when the Plaintiff received Mr. Bloor's report, he knew the facts which constitute the essence of his present complaint. What he did not know at that stage was that, to use Steyn L.J.'s phrase in Dobbie v. Medway Health Authority, he had a possible cause of action. In my judgment, on the authorities to which I have referred, it is clear that knowledge of the latter kind is not necessary to affect the Plaintiff with knowledge for the purposes of section 14 (1) and (3). Put another way, if a person has been advised by one Consultant, who considers on the information put before him that the Plaintiff probably does not have a cause of action, and years later the Plaintiff is advised by another Consultant that, upon precisely the same facts he has a possible cause of action, he cannot thereafter claim that he did not gain knowledge for the purposes of sections 11 and 14 of the Act of 1980 until he received the later opinion."
"As to constructive knowledge, the approach, it is submitted, and I agree, is to determine what the Plaintiff should have realised or obtained, asking no more of him than is reasonable. That is a standard of reasonableness objective, but must take into account his position, circumstances, character and intelligence. That follows from Nash and Eli Lilley.
And so would it have been reasonable to expect the Plaintiff to make enquiries before in fact he did? On that issue, the burden is on the Defendants to show that he should have done. In my judgment, nothing occurred in the intervening period between his treatment and the approach to solicitors - which may initially, from what I made of the evidence, not even been of itself particularly to launch a negligence action, the approach to solicitors when it was made. It may well be that if the Plaintiff had been a dissatisfied or a complaining man he might have started a train of enquiry somewhat earlier, but as I have said, he was a man who had every confidence in those treating him."
"The standard of reasonableness in connection with the observations and/or the effort to ascertain are therefore finally objective but must be qualified to take into consideration the position, and circumstances and character of the plaintiff. Turning to subsection (3) (b), this subsection deals with facts ascertainable with the help of advice from outside expert sources, which, in the circumstances of the case, it is reasonable for the plaintiff to seek. As the whole of this section is dealing with claims for personal injury the specific reference to medical advice is understandable; but it clearly extends to other experts whom it would be reasonable to expect the plaintiff to consult. In considering whether or not the inquiry is, or is not reasonable, the situation, character and intelligence of the plaintiff must be relevant."
"(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;
(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.
(4) In a case where the person injured died when, because of section 11, he could no longer maintain an action and recover damages in respect of the injury, the court shall have regard in particular to the length of, and the reasons for, the delay on the part of the deceased."
"The first concerns the relevance of the plaintiff's prospects of success in the action and the evidence necessary to be adduced to establish those prospects. Although not one of the matters specifically dealt with in paragraphs (a) to (f) of section 33 (3), it is one of the circumstances of the case which the court should take into account in considering the balance of hardship. Plainly it is more prejudicial to a plaintiff to be deprived of a cause of action when it is almost bound to succeed, as for example an injured passenger in a motor vehicle, than one that looks highly speculative. Equally, although it is always prejudicial to a defendant to be deprived of a defence under the Limitation Act, it may be less inequitable or unfair where the plaintiff has a strong case and more unfair where he has a weak one. But where as here the limitation issue is tried and determined before the merits of the claim, the court cannot and should not attempt to determine the merits on affidavit evidence. All that can be done and should be done is for the judge to take an overall view of the prospects of success; a judge who is experienced in this type of litigation should have no difficulty in doing so."
"For the reasons given below we accept that in these cases, if it is shown that the claim is a poor case lacking in merit, there may be significant and relevant prejudice to the defendants if the limitation provisions are disapplied."
"The onus is on the plaintiff to satisfy the court that the primary limitation period should not apply. He must show that there is evidence which, if accepted, will establish the necessary ingredients of his cause of action. In many cases his own evidence on affidavit may suffice. If it is accepted, then he should succeed. It is not normally appropriate for the defendants to try and counter the evidence at that stage. The matter cannot be tried on affidavit, and as I have said the best the judge can do is to take a view of the prospects. But where it is necessary to show that prudent employers customarily adopt specific precautions not taken by the defendants, or that the defendants knew or ought to have known of some special risk peculiar to the plaintiff, this may well have to be established by expert evidence, which should either be exhibited, or at the very least the plaintiff's solicitor should depose that he is so advised and the source of his information."
Lord Justice Evans :
Discretion - section 33
Lord Justice Roch :
Did the judge misdirect himself on the law, and, if he did not,
Did he reach a decision that was clearly wrong?
"As to constructive knowledge, the approach, it is submitted and I agree, is to determine what the plaintiff should have realised or obtained, asking no more of him than is reasonable. That is a standard of reasonableness objective (sic), but must take into account his position, circumstances, character and intelligence. That follows from Nash -v- Eli Lilly.
And so would it have been reasonable to expect the plaintiff to make enquiries before in fact he did? On that issue, the burden is on the defendants to show that he should have done."
"On this basis, in our judgment, the proper approach is to determine what this plaintiff should have observed or ascertained, while asking no more of him than is reasonable. The standard of reasonableness in connection with the observations and/or the effort to ascertain are therefore finally objective but must be qualified to take into consideration the position, and circumstances and character of the plaintiff."
"But this is an area (the area of constructive knowledge under Section 14(3)) - in which the onus of proving constructive knowledge is on the defendants."