O'Driscoll v Dudley Health Authority

For limitation purposes, knowledge that an injury is attributable to an act or omission requires only broad knowledge that the injury is capable of being attributed to the identified conduct. It does not require knowledge of negligence, breach of duty, or proof of causation. The claimant must have sufficient confidence to begin investigating a possible claim, including by notifying the proposed defendant or seeking legal advice. Expert evidence is not required before time begins to run where the claimant already knows the essential causally relevant omission. A mistake about the age of majority does not postpone limitation. A party who expressly abandoned reliance on the discretionary extension under section 33 cannot ordinarily revive that issue on appeal.

The claimant suffered hypoxic brain damage and cerebral palsy following her birth in 1970. She alleged negligent failure to deliver her by timely Caesarean section. Poole J held that she lacked actual and constructive knowledge until receipt of an expert report in 1993. The claim was issued in May 1994.

The Court of Appeal considered when the claimant acquired knowledge for the purposes of sections 11 and 14 of the Limitation Act 1980, whether constructive knowledge had been established, and whether the claimant could revive an abandoned section 33 argument.

1. Appeal allowed. The claim was statute-barred and the action was dismissed.
2. Under sections 11(4)(b) and 14(1)(b) of the Limitation Act 1980, knowledge that an injury was “attributable to” an act or omission means knowledge that it was capable of being attributed to that conduct. It does not require knowledge that the conduct was negligent or actionable, or proof that it caused the injury.
3. The relevant knowledge is broad knowledge of the essence of the causally relevant act or omission, accompanied by sufficient confidence to justify beginning the preliminaries to a claim. The claimant’s letters identified hypoxia at birth and the alleged failure to perform a timely Caesarean section. That was sufficient knowledge, notwithstanding the absence of expert confirmation.
4. The claimant had the relevant knowledge by her eighteenth birthday, or at the latest by the time of her sister’s birth in December 1989. The three-year period therefore expired before the writ was issued in May 1994.
5. Otton LJ expressed the view that constructive knowledge had also been established before 11 May 1991. Slade LJ preferred to decide the case on actual knowledge, and Simon Brown LJ considered constructive knowledge unnecessary to determine.
6. The claimant had abandoned reliance on section 33 below. Even assuming jurisdiction to reopen the issue, there were no exceptional circumstances or intervening legal developments justifying doing so, particularly given the need for finality and the absence of a proper evidential opportunity for the respondent.

• Court of Appeal (Civil Division): Poole J’s decision on the preliminary limitation issue was reversed. The appeal was allowed, the action dismissed, and costs orders made as stated in the order.