Harrison v Isle of Wight NHS Primary Care Trust

For limitation purposes, knowledge requires more than a general suspicion that medical treatment caused injury. The claimant must know enough about the causally relevant act or omission to make it reasonable to investigate a claim. Where investigations pursue the wrong cause and the true injury is only later identified, time does not necessarily begin to run when the claimant first consults solicitors or sends a letter of claim. The relevant knowledge arises when the claimant has sufficient confidence that the specific injury is attributable to the act or omission alleged to constitute negligence. The court may distinguish cases involving several injuries from cases involving one injury with several possible causes.

The claimant alleged that surgery performed by the defendant’s surgeons in 2005 detached her deltoid muscle and caused continuing shoulder disability. Proceedings were issued on 19 March 2012. The defendant contended that the claim was statute-barred under sections 11 and 14 of the Limitation Act 1980, because the claimant had acquired knowledge more than three years earlier when she suspected excessive bone removal and instructed solicitors.

The issue of limitation was tried as a preliminary issue. The central question was when the claimant first knew that the specific injury relied on was attributable to the act or omission alleged to constitute negligence.

1. The limitation issue was decided in the claimant’s favour. The claim was not statute-barred.

2. Under sections 11 and 14 of the Limitation Act 1980, knowledge requires knowledge that the injury is significant and attributable to the relevant act or omission. Legal knowledge of negligence is unnecessary. The authorities, including Halford v Brookes (1991) 1 WLR 428, Nash v Eli Lilly & Co 1 WLR 782 and Spargo v North Essex District Health Authority (1997) PIQR p235, establish that reasonable belief may suffice, but vague suspicion does not.

3. The claimant’s essential injury was the detachment of the deltoid muscle, not the alleged excessive resection of the acromion. The latter was a suspected cause which did not explain the damage. The claimant and her advisers had pursued that issue, but the investigations and expert advice on it proved abortive. They were therefore barking up the wrong tree.

4. The approach in Driscoll-Varley v Parkside Health Authority (1991) (2) MED LR 346 was more appropriate. The claimant did not acquire the requisite knowledge until Mr Taylor’s operation on 16 June 2009 confirmed that the deltoid was detached from the acromion remnant. The correspondence with solicitors, letter of claim and limitation extensions did not establish earlier knowledge.

5. Bristow v Grout The Times LR 3 November 1986 was distinguishable. It concerned several injuries arising from one accident, whereas this case concerned one injury with several possible causes.

6. It was unnecessary to decide the alternative application under section 33. If necessary, the court would have considered it just and equitable to disapply the limitation period, given the delayed diagnosis, absence of demonstrated prejudice and the harshness of depriving the claimant of her claim.