Rowbottom v Royal Masonic Hospital

For limitation purposes, knowledge that an injury is attributable to an alleged omission requires sufficient knowledge of the essence of that omission. A mere suspicion that treatment was omitted does not necessarily suffice where the claimant reasonably believes that it was provided and the medical expert cannot say whether it was provided.

A claimant need not know that the omission was negligent. Knowledge arises when the claimant can properly identify the causally relevant act or omission and regard the injury as capable of being attributed to it. A claimant who is pursuing the wrong explanation, or reasonably requires expert clarification before identifying the omission, may lack the knowledge required by section 14(1)(b) of the Limitation Act 1980.

The claimant sought damages for injuries following a hip replacement operation. He alleged that the hospital's nursing staff had failed to administer prescribed antibiotics, causing infection, further surgery and the eventual amputation of his leg.

An earlier action against the hospital and surgeon had been discontinued. Fresh proceedings against the hospital were issued on 12 July 1996. Master Murray determined a preliminary limitation issue against the claimant, holding that he had acquired the requisite knowledge on or shortly after 18 May 1993, when he received an initial expert report and counsel's opinion.

The claimant appealed, contending that he first acquired knowledge of the alleged omission on or after 22 July 1993, when his expert supplied an addendum confirming that the absence of any record reasonably supported the conclusion that antibiotics had not been administered. The central issue was the claimant's date of knowledge under sections 11 and 14 of the Limitation Act 1980.

1. By a majority, the appeal was allowed. Mantell LJ and Wall J held that the claimant first acquired the knowledge required by section 14(1)(b) of the Limitation Act 1980 on or shortly after 22 July 1993. The fresh proceedings were therefore not statute-barred. Peter Gibson LJ dissented.

2. Mantell LJ held that the material omission was the hospital staff's failure to administer antibiotics. The initial expert report disclosed a strong suspicion arising from the absence of a record, but it neither asserted nor assumed that antibiotics had not been given. The claimant himself believed that he had received antibiotics. The anterior question whether the alleged omission had occurred therefore remained unresolved until the expert's addendum.

3. Wall J agreed that section 14(1)(b) required attention to the claimant's knowledge that his injury was attributable, wholly or partly, to the particular act or omission alleged. Before the addendum, the claimant believed that the infection had resulted from a defective drain and that antibiotics had been administered. The initial report stated that the expert did not know whether antibiotics had been given and otherwise exonerated the nursing staff. It therefore did not convey knowledge of the omission later pleaded.

4. Applying North Essex District Health Authority v Spargo [1997] 8 Med LR 125, Wall J held that a claimant lacks the requisite knowledge when pursuing the wrong causal explanation or when expert clarification is reasonably required before the relevant omission can properly be identified. The addendum supplied a credible basis for concluding, contrary to the claimant's previous belief, that antibiotics had not been administered.

5. Peter Gibson LJ would have dismissed the appeal. In his view, the initial report gave the claimant broad knowledge of a real possibility that the infection was attributable to the apparent failure to administer antibiotics. The later addendum added nothing material. His reasoning did not command the majority.

6. The order of Master Murray was set aside, save for the multi-track allocation. The court declared that the claim was not statute-barred and remitted it to a Master for directions.

1. Court of Appeal (Civil Division): By a majority, allowed the appeal, set aside Master Murray's limitation order save as to multi-track allocation, declared that the claim was not statute-barred, and remitted the claim for directions: [2002] EWCA Civ 87.

2. High Court, Queen's Bench Division: Master Murray, exercising the jurisdiction of a High Court judge, determined the limitation issue as a preliminary issue and held that the action was statute-barred.