Whiston v London Strategic Health Authority

For limitation purposes, knowledge that an injury followed hypoxia or a forceps delivery does not necessarily establish knowledge that it was attributable to an act or omission by medical staff. Constructive knowledge is assessed objectively by reference to a reasonable person in the claimant’s circumstances, disregarding personal characteristics unless directly attributable to the injury. The court may take intellectual ability into account when exercising the discretion under section 33 of the Limitation Act 1980, but not when assessing constructive knowledge. Even where a fair trial remains possible, prolonged delay, the explanation for it and diminished evidential cogency may make it inequitable to disapply the limitation period.

The claimant sought damages for cerebral palsy said to have resulted from hypoxia during his birth in 1974. Proceedings were commenced in October 2006. The preliminary issues were whether the claimant acquired relevant knowledge after 17 October 2003 and, if not, whether the court should disapply the limitation period under section 33 of the Limitation Act 1980.

The claimant knew of his cerebral palsy, hypoxia and forceps delivery, but said that he did not know, or suspect, that his injury might be attributable to acts or omissions by medical staff until November 2005.

1. Relevant knowledge. Under sections 11, 12 and 14 of the Limitation Act 1980, knowledge requires awareness that the injury was significant and that it was attributable, in whole or in part, to the act or omission alleged to constitute negligence. Knowledge that conduct was legally negligent is unnecessary.
2. Actual knowledge. The claimant had discharged the burden of proving that he did not acquire knowledge of attributability until November 2005. Mere knowledge of hypoxia and a forceps delivery did not itself establish attributability to the acts or omissions pleaded.
3. Constructive knowledge. The test was objective. The court had to consider when a reasonable person in the claimant’s circumstances would have begun investigating whether the injury could be attributed to hospital staff. Personal characteristics were generally excluded, save so far as directly attributable to the injury. Following the approach in McCoubrey v Ministry of Defence [2007] 1 WLR 1544, intellectual ability could be considered under section 33 but not under section 14(3). On the evidence, the claimant could not be fixed with constructive knowledge.
4. Section 33 discretion. The possibility of a fair trial was important but was not the only consideration. The court had to weigh all the circumstances, including the length and explanation of delay, promptness, steps taken to obtain advice, and the cogency of the evidence. Although the missing cardiotocograph did not make a fair trial impossible, the prolonged delay and reduced evidential cogency meant that it would be unfair to require the health authority to face the claim. If the claimant had acquired knowledge by 1992, the discretion would therefore have been refused.
5. The preliminary limitation issues were determined in the claimant’s favour on knowledge. The section 33 issue was decided hypothetically against him.