O'Driscoll v Dudley Health Authority

For the purposes of section 14 of the Limitation Act 1980, a suspicion that a birth injury may have resulted from hypoxia does not necessarily amount to knowledge of the specific negligent act or omission alleged. In a medically complex case, expert confirmation may reasonably be required before such knowledge exists.

Constructive knowledge under section 14(3) requires an objective assessment of reasonable inquiry. The reasonable person must nevertheless be placed in the claimant’s factual situation. Personal traits cannot undermine the objective standard, but an exceptional situation of severe dependency and reliable parental advice may mean that earlier inquiry was not reasonably required.

The claimant alleged that negligent management of her breech birth in 1970, including a failure to perform a caesarean section after cord prolapse, caused hypoxia and serious physical disability. Neither she nor her parents had been told that her condition might result from negligent treatment. After seeing a television programme in about 1985, the family suspected fault but mistakenly decided to wait until her twenty-first birthday before pursuing a claim.

The writ was issued on 11 May 1994. The health authority contended that the action was time-barred because the claimant had actual knowledge before adulthood, or constructive knowledge by the end of 1990. The limitation hearing concerned whether she had the requisite date of knowledge under sections 11 and 14 of the Limitation Act 1980.

1. The limitation defence was rejected. The claimant first had the relevant knowledge in June 1993, when she became aware of the expert report. Her action, commenced in May 1994, was therefore not statute-barred.

2. Section 14 requires knowledge that the significant injury was capable of attribution to the act or omission alleged to constitute negligence. In a medically complex birth-injury claim, suspicion or belief that hypoxia caused the injury was not knowledge of the pleaded failure to perform a caesarean section. The court accepted that expert confirmation was needed before the suspicion could attain the necessary firmness.

3. The claimant’s parents were agents to know, so their knowledge could be imputed to her. However, the 1991 letters alleging incompetence were assertions advancing a contemplated claim. They did not establish actual knowledge before the expert report.

4. Applying the approach in Nash v Eli Lilly & Co [1993] 1 WLR 782, the court held that the reasonable scope and timing of inquiry under section 14(3) depended on the factual context and the claimant’s situation. Nothing said around the birth of the claimant’s sister gave knowledge of fault or created a duty to obtain expert advice. The claimant’s profound physical dependency and her exceptional reliance on well-meaning but mistaken parental advice formed part of that situation.

5. Forbes v Wandsworth HA [1996] 7 Med LR 175 did not require an unqualified abandonment of those considerations. It preserved an objective standard and excluded reliance on traits such as unusual trustfulness or indolence. The present case concerned an exceptional situation rather than such personal characteristics. The claimant acted promptly once the period fixed by her parents’ advice had arrived and thereafter pursued the claim reasonably.

6. The court declared that the action was not statute-barred and ordered the defendants to pay the claimant’s costs of the limitation trial. Permission to appeal was refused, but a stay was granted pending an application to the Court of Appeal.

• High Court: The supplied judgment records Mr Justice Poole’s first-instance ruling that the action was not statute-barred. Permission to appeal was refused, but proceedings were stayed while the defendants could apply to the Court of Appeal. No later appellate decision is stated.