Dobbie v Medway Health Authority

For the purposes of Limitation Act 1980 sections 11 and 14, time begins when a personal-injury claimant knows that a significant injury is capable of attribution to the defendant’s act or omission. The claimant need not know that the act or omission was negligent, improper or actionable, nor know that a worthwhile claim exists.

The seriousness requirement concerns the injury’s quantum, rather than the claimant’s view that its cause was normal or proper. The statutory extension does not apply to trespass. Under section 33, a sympathetic and potentially strong claim may still be refused where a very lengthy delay would make it unfair to require the defendant to meet it.

Dobbie v Medway Health Authority concerned a patient whose breast was removed during surgery in 1973 after the surgeon considered a lump cancerous. The lump was later found benign. She brought a negligence claim in 1989, after learning through media coverage and later medical advice that microscopic examination could and should have preceded the mastectomy.

Otton J, in the Queen’s Bench Division, held on 14 February 1992 that the claim was statute-barred and declined to disapply the limitation period under section 33 of the Limitation Act 1980. The claimant appealed. The central issue was whether her earlier knowledge of the removal and its immediate consequences was sufficient knowledge under sections 11 and 14, despite her later discovery that the treatment might have been negligent.

1. The appeal was dismissed unanimously. The Master of the Rolls’ reasoning was expressly accepted by Beldam LJ and Steyn LJ. The claim was time-barred under sections 11 and 14 of the Limitation Act 1980, and the judge was entitled to refuse relief under section 33.
2. The relevant injury was the removal of the claimant’s breast and the ensuing physical and psychological harm. It was significant from the time of the operation. She also then knew that the injury was the direct result of the surgeon’s act or omission, even though she believed the treatment had been proper.
3. Under section 14(1)(b), attributability means that the injury is capable of attribution to the act or omission relied on. It does not require knowledge of legal fault, negligence, impropriety, an unnecessary operation, or a possible cause of action. The statutory requirements are exhaustive and must be applied with the precision appropriate to an extension of time available as of right.
4. The claimant therefore had actual knowledge within days of the operation. Her later independent advice supplied knowledge of possible negligence, but that was not a condition for time to begin. The court did not need to decide constructive knowledge.
5. The Master of the Rolls also corrected the judge’s treatment of trespass. Section 11 does not apply to an action in trespass, for which the statutory personal-injury extension is unavailable: Stubbings v Webb [1993] AC 498.
6. On section 33, the delay after actual knowledge was exceptionally long. Although the claimant had suffered grievously and her claim might have been strong, she could have sought advice and issued proceedings much earlier. It would be unfair to require the health authority to meet a claim arising so long before. Beldam LJ added that the burden of a possible claim hanging over an attending doctor was not a relevant prejudice where the doctor did not know that proceedings were contemplated, declining to apply that consideration from Biss v Lambeth, Southwark and Lewisham Health Authority (Teaching) [1978] 1 WLR 382.

• Court of Appeal (Civil Division) — appeal dismissed: [1994] 1 WLR 1234.
• High Court, Queen’s Bench Division (Otton J) — on 14 February 1992, held the negligence claim statute-barred and refused to disapply the limitation period under section 33 of the Limitation Act 1980.