Rogers v East Kent Hospitals NHS Trust

For limitation purposes, constructive knowledge is fact-sensitive. It cannot be inferred merely because a patient knew that treatment had failed or did not promptly question the treating doctors. The court must consider what the claimant reasonably understood, including the claimant’s trust in medical advice, explanations received, and personal circumstances. Knowledge requires sufficient awareness that the injury was significant and attributable to the alleged act or omission; knowledge that the conduct was legally negligent is unnecessary. Under the Limitation Act 1980, the court retains a broad discretion to disapply the limitation period where fairness requires it and the defendant cannot show sufficient prejudice. A technical objection to late service may be cured by an extension under the Civil Procedure Rules.

The claimant brought proceedings alleging negligent medical treatment following surgery for a hallux valgus deformity. The defendant pleaded that the claim was statute-barred under sections 11 and 14 of the Limitation Act 1980. His Honour Judge Mitchell, sitting in the Canterbury County Court, held that the claimant had constructive knowledge in 1997 or 1998 and declined to exercise the section 33 discretion.

The claimant appealed, arguing that the judge had applied the wrong test to date of knowledge, failed to assess distinct alleged omissions, and wrongly found prejudice under section 33. The defendant also argued that late service of the particulars of claim rendered the claim out of time. The central issues were the claimant’s date of constructive knowledge, the exercise of the section 33 discretion, and the effect of the late service.

1. Appeal allowed. The claimant’s first date of knowledge was 13 October 2003, when she discussed treatment options with Mr Price and first learned of alternatives to the amputation surgery. The earlier judge’s conclusion that knowledge arose in 1997 or 1998 was not reasonable on the evidence.
2. Constructive knowledge under section 14 of the Limitation Act 1980 is fact-sensitive. The court must consider the claimant’s actual circumstances and attitude towards the treating doctors. Awareness that operations had failed, continuing pain, or dissatisfaction did not by itself establish knowledge that the injury was attributable to an actionable omission.
3. The claimant had repeatedly attended her general practitioner and the orthopaedic service, but had been reassured and given no explanation indicating that alternatives to amputation had been omitted. She trusted the doctors, believed that recovery might take time, and sought relief from pain rather than investigating litigation. The earlier judge failed to give sufficient weight to those matters and to the evidence concerning the claimant’s change of doctors after moving to Staffordshire.
4. Even if the limitation decision had been upheld, the court would have exercised its discretion under section 33. The defendant had not demonstrated sufficient prejudice. Although witnesses had difficulty recalling events and some records or doctors were unavailable, the medical notes and treating evidence remained available, and fairness favoured allowing the claim to proceed.
5. The objection based on late service of the particulars of claim under CPR 6.7 had no merit. If the defendant’s conduct did not amount to acquiescence, the court would grant the necessary 72-hour extension under CPR 3.3.

• High Court (Queen’s Bench Division): Appeal from the Canterbury County Court allowed. The findings on limitation and section 33 were set aside, and the late-service objection was rejected.
• Canterbury County Court: His Honour Judge Mitchell held that the claim was statute-barred and declined to disapply the limitation period under section 33.