Rayner v Wolferstans (A Firm) & Anor

For limitation purposes, a claimant need only have broad knowledge of the essence of the act or omission to which the injury is attributable. The claimant need not know the precise medical mechanism, the detailed facts establishing negligence, or the form of a fully particularised claim. Knowledge exists when the claimant has sufficient belief and information to make it reasonable to investigate whether a claim exists.

Under section 33 of the Limitation Act 1980, the claimant bears the burden of showing that it is equitable to disapply the primary limitation period. The court must consider all the circumstances, including the statutory factors, without giving any factor automatic priority. A significant delay may be outweighed by the claimant’s diligence and by the limited evidential prejudice to the defendant.

The claimant suffered serious neurological injury following an epidural administered during childbirth in January 2004. She instructed Wolferstans (A Firm) to investigate a clinical negligence claim against Medway NHS Foundation Trust. The claim was discontinued after experts could not establish negligence without further imaging.

An MRI scan in 2010 led to a diagnosis of arachnoiditis. A further expert report in 2012 attributed the condition, on the balance of probabilities, to chlorhexidine contamination during the epidural. The claimant brought proceedings against both defendants. The court determined preliminary limitation issues, including when she acquired knowledge under sections 11 and 14, whether the professional negligence claim was time-barred, and whether section 33 should be applied.

1. Knowledge under sections 11 and 14. The claimant had the requisite knowledge by 22 July 2004. She knew that her injuries were significant, knew the relevant defendant and anaesthetist, and firmly believed that the injuries were attributable to something having gone wrong in the administration of the epidural, particularly the insertion of the needle. That was sufficient broad knowledge of the essence of the causally relevant act or omission.
2. The later identification of arachnoiditis and chlorhexidine contamination supplied a precise mechanism and a more particular formulation of negligence. It did not mean that the claimant had previously been pursuing the wrong cause. Detailed knowledge sufficient to plead the mechanism or establish negligence was unnecessary. The facts were distinguishable from Harrison v Isle of Wight NHS Primary Care Trust, where the claimant lacked sufficient certainty and the later cause of injury was substantially different.
3. The answer to Questions 1 and 3 was yes, and to Question 2 was no. By 2 September 2013 the claimant had lost the chance to pursue the claim against Medway, subject to section 33.
4. Claim against Wolferstans. The tort claim was not statute-barred because the loss of the chance to sue Medway occurred when the final extension expired on 7 September 2007. The contractual claim was statute-barred under section 5. The alleged breach consisted of advice given on 24 July, 26 July and 9 August 2007, followed by the claimant’s instructions to discontinue. It was not a continuing breach, even though it remained remediable.
5. Section 33. The claimant bore the burden of showing that it would be equitable to allow the claim against Medway to proceed. The discretion was unfettered, but had to be exercised by reference to all the circumstances and the statutory factors. The claimant had investigated and pursued the claim diligently, acted on legal and medical advice, and was not responsible for the material delay. Her evidence was not materially weakened, and Medway retained contemporaneous records, could adduce evidence about its systems and procedures, and could obtain expert evidence. Medway had also had an earlier opportunity to obtain evidence from the clinicians present.
6. The prejudice to the claimant, including the loss of a potentially full claim where the alternative claim against Wolferstans was uncertain and might yield less, substantially outweighed the prejudice to Medway. Section 11 was therefore disapplied under section 33, and the claim against Medway was permitted to proceed.