Forbes v Wandsworth Health Authority

For the purposes of Limitation Act 1980 section 14, a claimant alleging negligence by omission must know the factual omission said to have caused the injury. It is not enough to know that treatment failed or that time passed. The claimant need not know that the omission was negligent.

Constructive knowledge depends on an objective assessment of whether it was reasonable to seek expert advice. A serious adverse outcome may make a prompt second opinion reasonable. Personal traits such as trustfulness, resignation or lack of curiosity do not qualify that standard. Where limitation has expired, the court’s section 33 discretion requires a balance of prejudice, including evidential loss and the apparent strength of the claim.

The claimant alleged that hospital staff negligently delayed a second vascular operation in October 1982 and that, had it been performed sooner, his leg would not have required amputation. The writ was issued in December 1992. The claimant died during the appeal and his widow, as personal representative, was substituted.

His Honour Judge Baker QC, sitting as a Deputy High Court Judge, held that the claim was not statute-barred because the claimant lacked actual and constructive knowledge until medical advice was obtained in 1992. The judge also stated that he would have disapplied the limitation period under section 33.

The Health Authority appealed. The central issues were when the claimant acquired constructive knowledge under section 14 of the Limitation Act 1980, and whether section 33 should permit the action to proceed.

1. Appeal allowed by a majority. Lord Justice Stuart-Smith, with whom Lord Justice Evans agreed, held that the claim was statute-barred and that no extension should be granted. Lord Justice Roch dissented on constructive knowledge.

2. On actual knowledge, all members of the court agreed that the claimant knew he had suffered a significant injury when his leg was amputated. But the allegation concerned an omission: a failure to perform the second operation earlier. Section 14(1) required knowledge of the factual omission alleged to have caused the injury. The claimant did not know, before obtaining specialist advice, that an earlier operation could have afforded an opportunity to save the leg. Knowledge that the treatment was legally negligent was not required.

3. On constructive knowledge, the majority held that it was objectively reasonable for a person in the claimant’s position to obtain medical advice after an unsuccessful operation and amputation. The gravity of the injury and the treatment history made a second opinion reasonable. The claimant was allowed time to recover from the shock and assess his disability, but the majority considered that this would have been about 12 to 18 months. His confidence in the surgeon, or an unexpressed disposition to accept the outcome, did not excuse prolonged inaction. Lord Justice Roch would have upheld the judge’s assessment under the qualified objective approach derived from Nash v Eli Lilly & Co [1993] 1 WLR 782.

4. The court exercised the discretion under section 33 afresh because the claimant’s death after the preliminary hearing materially changed the position. Section 33 could apply to an action continued for the estate’s benefit. However, the delay had caused substantial evidential prejudice: important records were missing, relevant nurses could not be identified, and the treating surgeon had no independent recollection. The claimant’s evidence of breach and causation was sparse, and the court assessed the prospects of overcoming the Bolam standard as modest. The balance was therefore against disapplying limitation.

• Court of Appeal (Civil Division) — allowed the Health Authority’s appeal and determined the preliminary limitation issue for the defendant: [1997] QB 402.
• High Court (Queen’s Bench Division) — on 11 August 1994, His Honour Judge Baker QC held that the claim was not statute-barred and indicated that he would in any event exercise the discretion under section 33 for the claimant. No report citation is stated in the judgment.