Martin v Kaisary & Anor

For limitation purposes, a claimant does not have knowledge that an injury is attributable to alleged negligence merely because the claimant knows that a serious medical event occurred. The relevant knowledge concerns the broad facts on which the proposed claim is based, including the identity of the defendant and the relevant act or omission. A claimant who reasonably investigates the wrong potential cause may lack the necessary knowledge until the correct causal issue becomes apparent.

Where the limitation period has expired, the court must consider all the circumstances under section 33 of the Limitation Act 1980, balancing prejudice to the claimant and defendant and addressing the statutory factors.

The claimant suffered permanent brain and psychiatric injury after a cardiac arrest following private treatment by the first defendant at the proposed second defendant’s hospital. He issued proceedings against the first defendant within three years, but later sought to add the hospital trust after the first defendant denied responsibility for the post-operative nursing and medical staff.

The trust contended that the proposed claim was statute-barred. The preliminary issues were whether the claimant’s date of knowledge under sections 11 and 14 of the Limitation Act 1980 fell after 5 August 2001 and, if not, whether the claim should proceed under section 33.

1. The claimant’s date of knowledge for the purposes of his potential claim against the Trust was after 5 August 2001. Although he knew that he had suffered a serious post-operative injury, he believed until then that his ill health and bleeding were associated with Heparin and did not know that the relevant complaint concerned inadequate monitoring and failure to detect continuing internal bleeding.
2. The approach in North Essex District Health Authority v Spargo [1997] 8 MED LR 125 applied. A claimant who believes that he has identified the acts or omissions requiring investigation may still lack the statutory knowledge where he is pursuing the wrong causal explanation.
3. The claim against the Trust was therefore within time under section 11(4) of the Limitation Act 1980, read with section 14. It was unnecessary to decide whether the claimant’s actual knowledge arose as late as March 2003.
4. Alternatively, the court would have exercised its discretion under section 33 in the claimant’s favour. The delay was relatively short, resulted from a genuine mistake by the claimant’s solicitors, and was not attributable to the claimant personally. The evidence remained sufficiently cogent, the Trust was likely to become involved through contribution proceedings, and the prejudice to the claimant if the Trust were excluded substantially outweighed the prejudice to the Trust.
5. The action was permitted to proceed against the proposed second defendant.

First-instance decision on a preliminary limitation issue. The judgment records that an earlier application under CPR 19.5(3)(b) had been rejected by Mr Justice Simon and that the Court of Appeal dismissed the claimant’s appeal on 16 March 2005, but the citation of that decision is not stated.