London Strategic Health Authority v Whiston

Constructive knowledge under section 14(3) of the Limitation Act 1980 is assessed mainly objectively in all the circumstances. Significant injury creates a heightened expectation of curiosity, but does not automatically fix a claimant with everything that enquiries would have revealed. A lifelong disability may reduce the curiosity reasonably expected, although deterioration and knowledge of a possible connection with medical treatment may eventually require enquiry.

When exercising the section 33 discretion, the court must balance the parties’ prejudice and consider the claimant’s actual reasons for delay. The continued possibility of a fair trial strongly favours disapplication, although it is not decisive.

The claimant suffered cerebral palsy caused by hypoxia at his birth in 1974. He commenced clinical negligence proceedings against the health authority in 2006, alleging that a junior doctor had used inappropriate forceps, persisted unsuccessfully for at least 30 minutes and delayed seeking senior assistance.

Eady J determined limitation as a preliminary issue. He found that the claimant acquired neither actual nor constructive knowledge before November 2005, so the claim was brought within section 11 of the Limitation Act 1980. On a hypothetical assessment, however, he would have refused to disapply the limitation period under section 33.

The health authority appealed on actual and constructive knowledge. The claimant cross-appealed on section 33. The central issues were when the claimant knew or should have known that his injury was attributable to the alleged acts or omissions, and whether the limitation period should in any event be disapplied.

1. The authority’s appeal and the claimant’s cross-appeal were allowed. The claimant lacked actual knowledge until 2005 but had constructive knowledge by about 1998. His action was therefore outside the primary limitation period. The court nevertheless exercised the section 33 discretion afresh and disapplied section 11 of the Limitation Act 1980, allowing the claim to proceed.

2. For section 14(1)(b), knowledge of every detail of the alleged negligence is unnecessary, but the claimant must know the essence of the act or omission to which the injury is attributable. Knowledge merely that delivery had involved forceps did not capture the pleaded case. Its essentials were the prolonged unsuccessful attempt, use of the wrong type of forceps and delay in obtaining senior assistance. The judge therefore correctly rejected actual knowledge before 2005.

3. Section 14(3) requires a mainly objective assessment of what a person in the claimant’s situation might reasonably have been expected to discover. Particular character and intelligence are generally irrelevant, although circumstances attributable to the injury may be considered. Lord Hoffmann’s statement in Adams v Bracknell Forest Borough Council [2004] UKHL 29 did not establish an inflexible rule that knowledge of significant injury automatically fixes a claimant with everything proper enquiries would have revealed.

4. The court must consider all the circumstances while applying the heightened expectation of curiosity resulting from the policy against stale claims and the availability of section 33. Disability from birth may reasonably produce greater acceptance than injury suffered in adulthood. Here, however, the claimant knew by his early twenties that his serious disability was worsening, resulted from hypoxia at birth and followed a forceps delivery. A reasonable person in his circumstances would then have asked his mother, a nurse and trained midwife, about the delivery.

5. Eady J’s section 33 assessment was undermined by treating the family’s earlier decision not to sue as the claimant’s explanation for delay and by failing adequately to weigh the claimant’s prejudice. The claimant had made no conscious decision not to sue. The absent cardiotocograph trace did not prejudice the authority more than the claimant, fading memories had little significance, and a fair trial remained possible. The loss of any remedy for serious injury and substantial future needs strongly favoured disapplication.

Longmore LJ agreed, describing the discretionary decision as borderline but concluding that the balance of prejudice justified disapplication. Smith LJ agreed with both judgments.

1. Court of Appeal (Civil Division): The health authority’s appeal was allowed on constructive knowledge but dismissed on actual knowledge. The claimant’s cross-appeal was allowed. The court disapplied section 11 of the Limitation Act 1980, so the clinical negligence claim could proceed: [2010] EWCA Civ 195.

2. High Court, Queen’s Bench Division: Eady J held on preliminary issues that the claimant had neither actual nor constructive knowledge before November 2005. He therefore found the claim timely, but stated that he would otherwise have refused relief under section 33. No neutral citation is stated in the judgment.