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Cite as: [2002] EWCA Civ 87, 65 BMLR 103

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Rowbottom v Royal Masonic Hospital [2002] EWCA Civ 87 (12th February, 2002)

		Neutral Citation Number: [2002] EWCA Civ 87
		Case No: QBENF/2001/1072/B3

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN’S BENCH DIVISION
Master Murray

Royal Courts of Justice
Strand,
London, WC2A 2LL

12 February 2002

B e f o r e :

LORD JUSTICE PETER GIBSON
LORD JUSTICE MANTELL
and
MR. JUSTICE WALL
____________________

ROWBOTTOM
Appellant

- and -

ROYAL MASONIC HOSPITAL
Respondent

____________________

(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)

____________________

Mr A Jeffreys QC and Mr R Bendall (instructed by Messrs R Gordon Roberts Laurie & Co. of Llangefni for the Appellant)
Mr S Miller QC and Mr R Booth (instructed by Messrs Le Brasseur J Tickle of Kingsway, London for the Respondent)
____________________

HTML VERSION OF JUDGMENT
AS APPROVED BY THE COURT
____________________

Mantell LJ:

Neil Rowbottom claims damages for personal injuries against the Royal Masonic Hospital. He alleges that the hospital nursing staff were negligent in not administering antibiotics following a hip replacement operation which took place on 9^th February 1991 as a result of which failure the wound became infected leading to further major surgery and eventually to the amputation of Mr Rowbottom’s left leg.

A writ was issued with Statement of Claim on 3^rd December 1993 by which both the hospital and the surgeon were made defendants. That action was discontinued against the hospital on 7^th November 1995 and against the surgeon on 14^th February 1997.

Between times fresh proceedings were commenced against the hospital alone by writ issued on 12^th July 1996. The allegations remained substantially the same.

By its defence the hospital denied liability and relied on the Limitation Act 1980.

It was agreed that the limitation point should be decided as a preliminary issue by Master Murray exercising the jurisdiction of a High Court Judge. On 17^th October 2000 the Master held that the action was statute barred. This is the appeal from that order.

The principal ground of appeal is that the Master was wrong to hold that 18^th May 1993 was the appellant’s “date of knowledge” for the purposes of sections 11 and 14 of the Limitation Act 1980, that being the date when Counsel advised, rather than 22^nd July 1993 when a further report was received from the appellant’s proposed expert, Mr Millner.

Although before the Master the defendant, now respondent, had contended for an earlier date than was found, there is no cross appeal and the contenders, if I may put it that way, are the two dates mentioned. Of course, if the Master was right the second writ was out of time and if not the appellant slips through by a matter of days. It is perhaps worth mentioning at this stage that no question of dis-applying the limitation period under section 33 of the Act could arise because of the earlier discontinued action (see Walkley v. Precision Forgings Ltd (1979) 1WLR 606; 1979 2 AER 548 HL).

The provisions of sections 11 and 14 of the Limitation Act 1980 are well known and need not be set out in full. It is sufficient to adopt the summary of Sir Thomas Bingham MR, as he then was, in Dobbie v. Medway Health Authority (1994) 1 WLR 235; 1994 5 MEDLR 160 at pp. 1240G and 164 respectively:

“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 same authority is good for the proposition that knowledge of fault or negligence is not needed to start time running simply knowledge that the injuries complained of were caused by the act or omission of the proposed defendant. In that case the plaintiff had her breast removed on the assumption that a lump was cancerous when further investigation would have revealed that it was benign. Sir Thomas Bingham said this:

“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 of 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.”

So the question here was; when did the appellant know that his dreadful injuries were capable of being attributed to something done or not done by the hospital staff?

In seeking an answer to that question the Master considered, and I agree, that three documents were of particular importance. The first was an opinion of Mr Millner, orthopaedic surgeon, provided in February 1993; the second was counsel’s opinion on the merits dated 12^th May 1993 and the third was the addendum from Mr Millner already referred to dated 22^nd July 1993.

Mr Millner had been asked a number of questions, some directed at the operative procedures; some directed at the adequacy of the drain inserted after the operation; and some directed to whether antibiotics were given and if not whether they should have been. As to this last matter (the only one of significance on the appeal) Mr Millner stated:

“I do not know whether or not antibiotics were given, but I can certainly not see anything in the record that would indicate that they were. Infections do certainly occur in people who are covered by a course of prophylactic antibiotics, but nevertheless it must be accepted they do reduce the risk of this occurring.”

Then later:

“In summary, therefore, I would say that the only points which would have lessened the likelihood of infection, although certainly not entirely eliminated it, was the provision of adequate suction drainage and adequate prophylactic antibiotics. Attempts at the former were not successful because of the points raised above, but whether this could be considered to be negligent or not is a fairly moot point and I think it would be difficult to make such an accusation stick. I cannot see that he was given antibiotic cover and, if he was not, then my view is that it was negligent not to have given antibiotic cover unless there was a very good reason for not doing so. I would however stress that even if antibiotic cover had been given and a drainage had been satisfactory, there is no certainty that the infection would not have occurred.”

Pausing there, it would seem that at that stage the “omission” upon which the appellant was later to rely had not been established but there was certainly a strong suspicion that antibiotics had not been administered.

The point was picked up by Counsel in his opinion of 12^th May 1993. In that advice he stated:

“I have come to the conclusion it would appear to be possible that my lay client has a cause of action, but before making any final assessment I would ask that Mr Millner be invited to clarify certain points to which I refer…below.”

He went on to seek Mr Millner’s opinion on the following:

“(a) Is it reasonable to assume no antibiotics were given if there is no record of any having been given?

(b) If antibiotics had been given is it likely that there would have been no infection or that at least any infection would not have become so deep rooted so as to result in amputation becoming necessary?

(c) In short, if antibiotics had been given, is it likely or merely possible that my client’s leg would have been saved?”

At that stage Counsel was advising as to whether the limitation on his Legal Aid Certificate should be lifted to allow for commencement of proceedings with the benefit of state funding.

Mr Millner’s response coming on 22^nd July was to say that in his view it was reasonable to assume that no antibiotics had been given in the absence of any record either in the doctor’s notes, nursing records or other documents and that had antibiotics been given prophylactically the risk of infection becoming established would have been reduced by 75%. Overall therefore it was his view that if antibiotics had been given it was likely that the leg would have been saved.

Having reviewed those pieces of evidence the Master found “that he did have the requisite knowledge on or shortly after 18^th May 1993 because the evidence conveyed, together with Mr Gray’s opinion, the fact that there was “a case worth pursuing against the Royal Masonic Hospital for failure to administer antibiotics.” On the way to that conclusion the Master had observed that counsel’s doubts really related to causation rather than liability.

In my view that is not the complete picture. Certainly there was a major question as to whether the giving of antibiotics would have made a difference but the equally important and anterior question remained; had antibiotics been administered or not? That was the omission to which the injuries had to be related.

On any view this is a borderline case. Mr Millner’s original report certainly did not assert or even assume that antibiotics had not been given. There was also the evidence from the appellant that it was his belief that he had received antibiotics after the operation but did not know whether such drugs as were administered had been in accordance with the prescription. Against that it may be said that the absence of any mention of antibiotics in the record is sufficient to support an inference that none had been given.

After a deal of hesitation brought about not least because I am differing from this most experienced Master, sadly now deceased, I have come to the conclusion that the appellant has justified his assertion that he first had knowledge of the respondent’s omission on or after 22^nd July 1993. Accordingly, I would allow the appeal.

Mr Justice Wall:

I have had the advantage of reading in draft the judgments given by Peter Gibson LJ and Mantell LJ. Like Mantell LJ I regard this as a borderline case, and one in which the application of the statutory provisions to its unusual facts is difficult. I readily acknowledge that my mind vacillated during the course of the admirably succinct and cogent arguments addressed to us by leading counsel on both sides. In the event, however, whilst recognising that my experience in this field is extremely small compared with that of Master Murray, I have nonetheless come to the conclusion that the decision he reached was wrong. I would, accordingly, allow this appeal.

I gratefully adopt Mantell LJ’s recital of the facts, and I will endeavour to set out only those parts of the material before this court which are necessary for an understanding of how I have reached my conclusion.

In my judgment, it is important to focus clearly on section 14(1)(b) of the Limitation Act 1980, and the appellant’s knowledge “that the injury was attributable in whole or in part to the act or omission which is alleged to constitute negligence”.

The relevant omission is pleaded in paragraph 5 of the Statement of Claim, as a failure by the nursing staff of the Royal Masonic Hospital (RMH) to administer (or cause to be administered) to the appellant on 11 and 12 February 1991 a course of antibiotics prescribed for him previously on 9 February 1991. The question, accordingly, is: when did the appellant have knowledge of that omission?

The Master had the advantage of seeing and hearing the appellant give evidence. The appellant made “a most favourable impression” on the Master as a witness. The Master added: “I certainly do not reject in point of fact anything that he has said to me”.

The appellant’s evidence appears at several points in the papers. The first is a proof of evidence which the appellant apparently dictated himself for his solicitor sometime in 1992. In this statement, the appellant ascribes the infection which led subsequently to the amputation of his leg to the failure of the drain inserted into it during the operation on 9 February 1991. He does not attribute it to a failure on the part of the nursing staff to administer antibiotics. To the contrary, he asserts he was given antibiotics. He says in terms:

“Antibiotics were administered as per the medication chart for this period and also I had four injections a day for ten weeks into my belly to stop blood clotting. All the normal aftercare procedures were observed according again to the medication chart. But what the nursing staff did not know is that the infection had already started within the leg and no matter what antibiotics were given they were not doing their job properly.”

In his affidavit sworn in these proceedings on 1 July 1998, the appellant deposes to the fact that it was not until he saw the second report of Mr. Millner on 22 July 1993 that he was “made aware both of the (RMH’s) omission and of its consequences”. He continues:

“Even at that stage I was not aware of exactly what had gone wrong. It was wrongly assumed by Mr. Millner that an appropriate antibiotic regime had never been prescribed. It was on that basis that once it emerged that the consultant was not an employee of the hospital I was advised that I should discontinue the original proceedings against the hospital and merely continue against Mr. Evans. It was only after Mr. Millner had examined the original hospital notes that he advised that the antibiotics had in fact been prescribed but not administered. I was therefore obliged to discontinue the original suit altogether and to issue the proceedings.”

In his oral evidence, the appellant maintained his position. In his examination in chief, he repeated it several times. This is one of the exchanges:

Q. The advice that you now receive from Mr. Millner, the consultant instructed by your solicitors, is that in fact the medication that has been prescribed for you was not actually given to you.

A. Yes.

Q. When did you first become aware of that?

A. Well, I didn’t until Mr. Millner actually told me. I still understood it was the drain that caused the problem, and it was only Mr. Millner pointing this out in his second report that told me that it was something different than I thought. I am not a doctor. I don’t really understand.

(The transcript contains the word “pain” for “drain”, but this is

plainly a transcribing error)

In cross-examination, the appellant readily accepted the general proposition that when he made his statement in 1992, his belief was that the infection which resulted in the amputation of his leg had been caused as a result of his treatment at RMH, but he repeated that his initial thoughts were that it was the drain which had caused the problem.

When cross-examined on the passage from his statement which I have set out at paragraph 23 above, he was asked specifically about the medication chart: -

Q. Did you have that?

A. I had no access to the medication chart.

Q. How were you able to say that antibiotics were administered as per the medication chart?

A. Because the nurse brought them round on the trolley and she read from the medication chart and gave me the appropriate tablets from the trolley.

In re-examination, the appellant was asked: -

Q. On receipt of Mr. Millner’s first report, what was your understanding of whether your infection was attributable to the hospital?

A. I don’t really understand a great deal because he was not specific in anything he said.

The Master’s finding was that the appellant received the first report of Mr. Millner, together with a copy of counsel’s opinion in relation to it on or shortly after 18 May 1993. This is the date on which the Master found the appellant to have the requisite knowledge.

Against the evidential background I have described, and speaking for myself, I have no difficulty in coming to the conclusion that immediately prior to the receipt of Mr. Millner’s first opinion on or shortly after 18 May 1993, the appellant did not know that his injury was attributable in whole or in part to the failure of the nursing staff to administer prescribed antibiotics. To the contrary, up to that point, it is to my mind clear that the appellant believed that he had been both prescribed and given antibiotics.

The critical question, therefore, becomes whether the appellant acquired the knowledge specified in section 14(1)(b) by reading Mr. Millner’s first opinion. I do not think he did. I do not, however, reach that conclusion merely on the basis of his oral evidence, even though I take that evidence to be truthful.

What did Mr. Millner’s first report tell him? It plainly told him that there had been no negligence on anybody’s part prior to his admission to RMH. In deciding the question of negligence, Mr. Millner said he had to narrow the period down to the appellant’s stay in the RMH. Mr. Millner then posed himself six questions. Where the answers are unequivocal, I have inserted them in brackets after the question:

(1) Was the (first) operation justified by the state of his hip? (Yes)

(2) Was it a realistic possibility to try and replace it? (Yes)

(3) Was it right to re-operate 31 days after the original operation with the partich bandings, rather than to wait longer? (Yes)

(4) Was the(re) negligence at operation over the insertion of the drain?

(5) Did he have or could he have been given prophylactic antibiotics?

(6) Was the nursing he received of the standard that he was entitled to expect? (Yes)

Mr. Millner’s answer to question (4) was that it was “a fairly moot point” and that “it would be difficult to make such an accusation stick”. That left question (5) relating to prophylactic medication.

Mantell LJ has set out the relevant passages from Mr. Millner’s first report relating to this issue at paragraph 10 of his judgment, and I need not repeat them. Mr. Millner’s opinion can, however, be summarised as follows:

(a) the appellant should have been given antibiotics;

(b) Mr. Millner did not know whether or not the appellant had been given antibiotics;

(c) there was nothing in the records to indicate that antibiotics had been given;

(d) if the appellant had not been given antibiotics that was negligent unless there was a very good reason for not doing so;

(e) there appeared to have been no shortcoming in the nursing treatment the appellant received;

(f) even if antibiotic cover had been given, and even if the drain had been satisfactory, there was no certainty that the infection would not have occurred.

Against this background, and again speaking for myself, I have no difficulty in accepting the appellant’s oral evidence and in particular the answer in re-examination which I have set out in paragraph 28 above. However, one reaches the same result, in my judgment, if one looks at the matter objectively. It must be remembered that the appellant thought antibiotics had been administered. Mr. Millner was not telling the appellant that his injury was attributable to a failure to administer antibiotics. He was telling him that he did not know whether or not antibiotics had been administered. Furthermore, Mr. Millner exonerates the nursing staff of the hospital, whose failure to administer prescribed antibiotics subsequently formed a critical part of the appellant’s case.

It needs also, I think, to be remembered that it was not until some considerable time later, when Mr. Millner examined the original records, that he was able to say unequivocally that there had been a period of 53 hours between 10 and 12 February 1991 when the appellant had not been given the antibiotic medication which had been prescribed for him.

Even without counsel’s opinion, therefore, I see no reason to fix the appellant with the requisite knowledge within section 14(1)(b) as at 18 May 1993. That opinion does, however, in my judgment give the appellant a further degree of protection. Counsel stated:

“In assessing whether there may be a cause of action on the basis that no antibiotics were given, it is necessary for Mr. Millner to consider the following points:

(a) Is it reasonable to assume that no antibiotics were given if there is no record of any having been given?

(b) If antibiotics had been given is it likely that there would have been no infection or that at least any infection would not have become so deep-rooted as to result in amputation becoming necessary?

(c) In short, if antibiotics had been given, is it likely or merely possible that my lay client’s leg would have been saved?”

Peter Gibson LJ criticises the questions asked by counsel, and of course I see the intellectual force of the criticism. Recalling my own days at the junior bar, however, and the cautious opinions I remember writing for what was then the Law Society, I do not, for my part, find myself out of sympathy either with Mr. Gray for writing such an opinion, or with the appellant for relying on it. In any event, I do not draw the same conclusions as Peter Gibson LJ. from Mr. Millner’s first report and Mr. Gray’s first opinion. The appellant’s belief had throughout been that antibiotics had been administered and that the nursing staff behaved properly. It is against this background that Mr. Gray’s first question is asked. To paraphrase in what I hope is not too loaded a way, counsel seems to me to be asking: is the absence of any record that antibiotics were given sufficient to demonstrate that the appellant is wrong in his belief that antibiotics were given?

Mr. Millner’s answer to that first question, given on 22 July 1993 was that it was reasonable to assume that no antibiotics were given if there was no record anywhere that they were. In my judgment, that answer plainly enables counsel to write his further opinion on 7 September 1993. Moreover, it also provides, in my judgment, a credible basis for fixing the date of the appellant’s knowledge of the omission to which his injury was attributable. Contrary to what he had thought up to 22 July 1993, the injury was attributable in whole or in part to the hospital’s omission to administer antibiotics. That knowledge is acquired for the first time on or about that date. It follows, therefore, that the date the appellant can properly be said to have acquired the knowledge identified in section 14(1)(b) of the Limitation Act 1980 was when he received Mr. Millner’s second opinion on or shortly after 22 July 1993.

I need to test my analysis against two criteria. The first question is whether or not it is consistent with the interpretation of section 14(1)(b) contained within the numerous authorities on the point. In paragraph 50 of his judgment, Gibson LJ cites the summary made by Brooke LJ in North Essex District Health Authority v Spargo [1997] 8 Med LR 125 at 129,130, which I need not set out in full. Brooke LJ’s category (4) reads as follows:

“On the other hand she will not have the requisite knowledge if she thinks she knows the acts and omissions she should investigate but in fact is barking up the wrong tree; or if her knowledge of what the defendant did or did not do is so vague or general that she cannot fairly be expected to know what she should investigate; or if her state of mind is such that she thinks her condition is capable of being attributed to the act or omission alleged to constitute negligence, but she is not sure about this, and would need to check with an expert before she could be properly said to know that it was.”

In my judgment, the appellant comes within this formulation on one of two bases. It can either be said that up until he received Mr. Millner’s second report he was barking up the wrong tree. He thought the cause of the infection was the failure to install the drain. Alternatively, as he himself said, he was not a doctor. He was dependent on the advice of Mr. Millner, and it was not until he received Mr. Millner’s second report that he could properly be said to know what the omission which caused his injury was.

Secondly, I need to examine the reasons given by the Master for reaching the opposite conclusion. The Master’s judgment is lengthy, running to some 25 pages. It contains a full and helpful recital of the facts, and a magisterial examination of the authorities on section 11 and 14 of the Limitation Act 1980. However, much of the judgment is also taken up with issues which, it is common ground between counsel, are not material to this appeal. I mention only one aspect, because it seems to me to relate to a point which, whilst helpful and correct in another context, may have affected the Master’s reasoning and distracted him from the critical issue in the case.

The passage in question comes at the heart of the Master’s judgment, shortly after the paragraph which I take to be its ratio, and to which I will return. The Master says:

“If a claimant, having acquired sufficient knowledge to show that he has a case, elects to more carefully define his chances of success before deciding whether to proceed that delay is, in my view, at the claimant’s own peril. If it were otherwise, delay incurred in the hope of a case getting better, more evidence turning up, stronger professional opinions being obtained, or even that more bullish counsel might be instructed, the effect would be that the limitation period would become open ended. Between May and July 1993, there was plenty of time for the claimant to say to his solicitors: “Issue a protective writ now!””

This is one of several references the Master makes to this point. It was agreed at the bar that the passage I have cited is irrelevant to the decision and inapplicable to the facts of this case. There was absolutely no reason of any kind for the claimant to insist upon the issue of a protective writ between May and July 1993, and in my judgment, it was perfectly sensible for Mr. Gray to seek clarification from Mr. Millner before advising the Legal Aid Board that it was proper to proceed. Certainly there was no risk of a limitation period expiring whilst that clarification was sought.

The ratio of the Master’s judgment seems to me to be contained in a single paragraph towards the end of his judgment, where he says:

“I accept that the Claimant in this case has made a most favourable impression on me as a witness, and I certainly do not reject in point of fact anything that he has said to me. The minor inconsistencies between his dictated statement and his affidavit and oral evidence are not significant. I consider, however, that he did have the requisite knowledge on or shortly after 18 May 1993 because the evidence conveyed, together with Mr. Gray’s opinion, the fact that there was a case worth pursuing against the RMH for failure to administer antibiotics. (My emphasis)

I now know that what, in this present claim has been referred to a “a mere period of 53 hours” is a limited failure rather than a general failure but the greater, in my view, encompasses the lesser.”

For the reasons I have already given, I disagree with this analysis. I do not think the evidence conveyed what the Master says it conveyed, and I agree with a submission made by counsel on behalf of the appellant in paragraph 6 of his skeleton argument that:

“…it is illogical to say of a man who knows he was given some antibiotics; yet is advised by a medical expert that he may not have been given any but the expert “does not know whether or not antibiotics were given”; and is then advised by a barrister that he cannot say if he has a cause of action; thereby “had knowledge” that his injury was attributable to a failure to give him antibiotics.”

For all these reasons, and recognising that I am disagreeing both with an experienced Master of the Queen’s Bench Division and with the reasoning of Peter Gibson LJ, I would nonetheless allow the appeal, and remit the matter for directions to be given designed to bring about the disposal of the case in as speedy and economic a manner as possible.

Peter Gibson LJ:

It is not possible to read the papers in this case without feeling enormous sympathy with the Claimant, Neil Rowbottom, who, it is plain, suffered acutely as a result of infection relating to his hip replacement operations in the Royal Masonic Hospital in January and February 1991, and who eventually underwent the amputation of his left leg in December 1992. But the question for the Master, as it is for this court, was a dry question of law. Given that Mr. Rowbottom did not commence the proceedings with which we are concerned within the ordinary 3-year period from the date on which his cause of action accrued, does he come within the provisions of ss. 11(4)(b) and 14 Limitation Act 1980 by reason of the fact, which he claims, that his “date of knowledge” was within three years of 12 July 1996 when the proceedings were commenced? Although it became apparent to Mr. Rowbottom, as he accepted in cross-examination, quite quickly that there was something wrong, and although he returned to hospital in March and again in June 1991, and although he first consulted solicitors regarding making a claim against the hospital on 18 June 1991 and first issued proceedings on 3 December 1993 against the hospital and the surgeon, which he discontinued nearly two years later, the dispute between the parties has boiled down to which of two dates is the date of knowledge for the purposes of s. 11(4)(b): 18 May 1993, being the date found by the Master to be the approximate date, or 22 July 1993, being the date contended for by Mr. Rowbottom. On that question we have had the benefit of admirably lucid but economic argument from Mr. Jeffreys Q.C. for Mr. Rowbottom and Mr. Miller Q.C. for the hospital.

The earlier date is derived from the main report of Mr. Rowbottom’s consultant orthopaedic surgeon, Mr. Millner, which is dated 9 February 1993, and the Opinion dated 12 May 1993 of counsel, Mr. Peter Gray, instructed to advise on Mr. Rowbottom’s behalf, the Master it seems, allowing a few days after the Opinion was written for Mr. Rowbottom to receive the Opinion and understand its contents. The latter date of 22 July 1993 is the date of the addendum provided by Mr. Millner to his first report and answering the three questions on which Mr. Gray sought clarification from Mr. Millner.

The relevant principles derived from the numerous reported cases in this area of the law were summarised by Brooke L.J. (with whom Nourse and Waller L.JJ. agreed) in North Essex District Health Authority v Spargo [1997] 8 Med LR 125 at pp. 129, 130 in this way:

“(1) The knowledge required to satisfy sect 14(1)(b) is a broad knowledge of the essence of the causally relevant act or omission to which the injury is attributable;

(2) “Attributable” in this context means “capable of being attributed to”, in the sense of being a real possibility;

(3) A plaintiff has the requisite knowledge when she knows enough to make it reasonable for her to begin to investigate whether or not she has a case against the defendant. Another way of putting this is to say that she will have such knowledge if she so firmly believes that her condition is capable of being attributed to an act or omission which she can identify (in broad terms) that she goes to a solicitor to seek advice about making a claim for compensation;

(4) On the other hand she will not have the requisite knowledge if she thinks she knows the acts and omissions she should investigate but in fact is barking up the wrong tree; or if her knowledge of what the defendant did or did not do is so vague or general that she cannot fairly be expected to know what she should investigate; or if her state of mind is such that she thinks her condition is capable of being attributed to the act or omission alleged to constitute negligence, but she is not sure about this, and would need to check with an expert before she could be properly said to know that it was.”

Mr. Jeffreys submitted that Mr. Rowbottom did not have knowledge of the relevant “omission which is alleged to constitute negligence” (within s. 14(1)(b)), viz. the failure to administer antibiotics for 53 hours between 10 and 12 February 1991 although they had been prescribed to him, until Mr. Millner’s addendum had been received. Mr. Jeffreys pointed to the evidence of Mr. Rowbottom that after the operation he believed that he was given antibiotics and that he continued to believe that the drain from his operation wound caused the problem until the addendum was received.

Mr. Rowbottom’s belief could not reasonably have persisted after Mr. Millner’s first report. Mr. Millner had been asked by the solicitors for Mr. Rowbottom in their letter dated 2 September 1992 to advise on (among other things) whether the medical persons treating him had failed to administer treatment which they should have administered. In his careful report Mr. Millner had stated that to decide on the question of negligence one had to answer a number of questions which he specified. One was whether there was negligence over the insertion of the drain. He considered whether the drain was adequately inserted and adequately managed and he answered that question by saying that it would be difficult to make an allegation of negligence stick. In the light of that advice, Mr. Rowbottom’s continued belief in the drain being the cause of the problem could not reasonably survive.

Another question posed by Mr. Millner was whether Mr. Rowbottom was given antibiotics prophylactically and, if not, should he have been. The significance of this is that Mr. Millner had specifically narrowed the question of negligence down to this single point, once he had eliminated negligence over the drain. He was clear that antibiotics certainly should have been administered and said that unless there was a very good reason for antibiotics not being used, then he thought it could be claimed that it was negligent not to have given Mr. Rowbottom antibiotic cover over the operation. He expressed himself cautiously by saying that he did not know whether or not antibiotics were given, but he made clear the position which appeared from the medical records which had been supplied to him: “I can certainly not see anything in the records that would indicate that they were.” That was repeated in his summary at the end of his report: “I cannot see that he was given antibiotic cover and if he was not, then my view is that it was negligent not to have given antibiotic cover unless there was a very good reason for not doing so.” Thus the position was that in the light of that report Mr. Rowbottom, who strongly believed, according to his oral evidence, that the serious infection within his hip resulted from his treatment at the hospital, could not reasonably have believed that the infection was the product of anything other than the failure, apparent from the records already in his advisers’ hands, to administer antibiotics. He knew from Mr. Millner’s report that even if antibiotic cover had been given, there was no certainty that the infection would not have occurred, but he knew that the apparent omission to give him antibiotics was a causally relevant omission to which there was a real possibility that the infection was capable of being attributed.

Mr. Jeffreys stressed that the advice of Mr. Millner was conditional on antibiotics not being administered, a matter on which Mr. Millner indicated that he had no knowledge. He said that the uncertainty which that raised was covered by Mr. Millner’s addendum in which he had answered the first of Mr. Gray’s further questions, viz. “Is it reasonable to assert that no antibiotics were given if there is no record of any having been given?” Mr. Millner, in answering that in the affirmative, did not have access to further doctor’s notes, nursing records or other documents or information. I regard the question as a somewhat strange one to ask a consultant orthopaedic surgeon. Anyone familiar with this area of the law knows that medical staff, dealing as they have to with many patients, almost invariably have to rely on medical records to say whether a particular medicine was or was not administered at a particular time. Of course it is always possible that the records are not complete, but it is a rare case where a medical witness will be able to speak from personal recollection in contradiction of the contemporaneous records. Mr. Millner had no personal knowledge of the relevant events. The fact that Mr. Gray thought it right to ask a question so obviously to be answered in the affirmative does not provide the answer to the different question whether on the basis of Mr. Millner’s first report alone Mr. Rowbottom did not have the requisite knowledge. Indeed the questions in the answers to which Mr. Gray was chiefly interested were the causation questions as to whether amputation would have resulted if antibiotics had been administered. That is apparent from Mr. Gray’s second Opinion dated 7 September 1993 when he reviewed the merits in the light of the clarification provided by Mr. Millner in that Opinion. Mr. Gray did not even mention Mr. Millner’s answer to the first question. For him what was important was Mr. Millner’s view that if antibiotics had been given the leg would probably not have had to be amputated.

We were told by Mr. Jeffreys that it was only when the originals of the medical records were examined that it was found that antibiotics had been prescribed but not administered. He sought to derive some support from this as showing that the absence from the medical records of any reference to antibiotics could not be treated as leading to the inference that they had not been administered without Mr. Millner’s confirmation that that absence could be relied upon. But, with respect, this point is a red herring. It has not been explained how the copies of the medical records could have differed from the originals. It does not show that there was no real possibility that the infection was capable of being attributed to the omission, apparent from the medical records, to administer antibiotics to Mr. Rowbottom.

For my part I am satisfied that in Mr. Millner’s first report Mr. Rowbottom had all the information which he needed in order to have knowledge within the meaning of s. 14(1). In particular he had broad knowledge of the essence of the causally relevant omission to which the injury was attributable in that he knew from Mr. Millner’s report that the injury, in the form of the infection, was attributable as a real possibility, in whole or in part, to the omission to administer antibiotics, which he alleged to constitute negligence. With all respect to the Master, I doubt if Mr. Gray’s first Opinion added anything of legal significance to Mr. Rowbottom’s knowledge. By the coda to s. 14(1) knowledge that any omission did or did not as a matter of law involve negligence is irrelevant. Accordingly I myself would have put the date of knowledge some months earlier than the Master by reference to Mr. Millner’s first report. However the exact date does not matter provided that the date of knowledge was not delayed until after Mr. Millner’s addendum was received. For the reasons which I have given I do not think that Mr. Millner’s addendum added relevantly to Mr. Rowbottom’s knowledge.

For these reasons, therefore, despite my sympathy with Mr. Rowbottom, I would dismiss his appeal from the Master.

Order:

The appeal be allowed.

The Order of Master Murray dated 29^th March 2001 be set aside save for the allocation of the case of the Multi-Track effect from transfer to the Central Registry.

It is declared that the Claimant’s cause of action is not statue-barred.

The claim be remitted to a Master for directions to be given.

The Defendant/Respondent do pay the Claimant/Appellant’s costs: (i) of and incidental to the application before Master Murray, and (ii) of the appeal, each to be subject of a detailed assessment it not agreed.

There be a detailed assessment of the Claimant/Appellant’s publicly funded costs pursuant of the Community Legal Services (Costs) Regulations 2000.

(Order does not form part of the approved judgment)