Khairule v North West Strategic Health Authority

For constructive knowledge under section 14(3) of the Limitation Act 1980, the court applies an objective standard. The relevant person is a reasonable person in the claimant’s objective circumstances, suffering the same injury and disability. Personal characteristics are disregarded, except where they result directly from the injury. A disability present from birth may not itself trigger curiosity about its cause.

Under section 33, the discretion to disapply the limitation period is wide and unfettered. The court must assess equity by considering all the circumstances, including whether a fair trial remains possible. The merits should not ordinarily be tried summarily on a limitation application.

The claimant, who had athetoid cerebral palsy following birth in 1981, brought clinical negligence proceedings against the defendant health authority. The claim was issued in 2006 and the parties agreed that limitation should be tried as a preliminary issue.

The central questions were whether the claimant had constructive knowledge under sections 11 and 14 of the Limitation Act 1980 by March 2003 and, if so, whether the court should disapply the limitation period under section 33. The court considered the claimant’s disability, communication difficulties, family circumstances, increasing independence and access to the internet.

1. Constructive knowledge. The proper approach under section 14(3) of the Limitation Act 1980 was that stated in McCoubrey v Ministry of Defence [2007] EWCA Civ 17. The court had to ask when a reasonable person in the claimant’s objective circumstances, suffering from athetoid cerebral palsy with preserved intellect and the same level of disability, would have begun investigating whether the injury was attributable to something done or omitted at birth. Subjective characteristics such as shyness, embarrassment, ambition and aspiration were excluded, save where directly caused by the injury.
2. The claimant’s disability, having existed from birth, did not itself trigger the necessary inquiry. The childhood explanation from his mother did not reasonably indicate that hospital staff might have caused the disability. Information from a friend in 2000 or 2001 was also insufficient. However, by the end of December 2002 the cumulative effect of the claimant’s knowledge, increasing independence, access to social services personnel, computer literacy and unrestricted internet access meant that a reasonable person in his situation would have begun investigating attributability. The claim was therefore statute-barred.
3. Section 33. The discretion under section 33 was wide and unfettered. The governing question was whether it would be equitable to allow the action to proceed, having regard to prejudice to both parties and all the statutory factors. Describing the claimant’s burden as an exceptional indulgence was inconsistent with Horton v Sadler [2007] 1 AC 307 and A v Hoare [2008] UKHL 6.
4. The decisive practical question was whether a fair trial remained possible. Although the claim was old and the CTG trace was missing, contemporaneous records, available witnesses and expert reconstruction provided sufficient material for a fair trial. The court declined to determine the substantive breach allegations summarily on the limitation application.
5. Balancing the prejudice, the claimant’s short post-limitation delay and the defendants’ ability to investigate and plead their case weighed firmly in favour of the claimant. It was equitable to disapply the limitation provisions and allow the claim to proceed.