Abstract
The Claimant underwent two operations to her left foot in 1983, which she alleged had been performed negligently. However, she did not commence proceedings until 24 July 2009, following consultation with another surgeon in 2006. The Health Authority maintained that the claim should be dismissed as being out of time.
From her early 20s, Mrs Hydes had had difficulties with her left foot. She saw Mr Boughey, a consultant orthopaedic surgeon employed by the Health Authority, in October 1982. She was then aged 35 years. Mr Boughey recognized that she had a serious problem requiring urgent surgery by way of forefoot arthroplasty. This was rare for someone so young.
She was admitted to the Pilgrim Hospital, Boston and surgery was performed on 14 January 1983. It involved excision of corns to one foot and all five metatarsal bones. The big toe was also fixed with a K-wire.
Thereafter, she continued to complain of stiffness in her big toe and a further corn developed. She was readmitted and on 2 November a further procedure was carried out involving a left Keller's operation and excision of the second and third metatarsal joints.
After the second operation, she had symptoms of considerable pain. She consulted her GP, who advised that it might take two years for the pain to resolve. Her left foot had reduced in size significantly, by 3.5 shoe sizes.
The Health Authority argued that Mrs Hydes ought to have been aware that the surgery had caused an injury which was different to her previous problems. In other words, she should have appreciated that there had been a restructuring of the foot.
Over subsequent years, the Claimant did what she could to relieve her symptoms. Between 1983 and 2009, she consulted her GP some 27 times, and her evidence was that on at least 50% of these occasions she raised the problems she was having with her foot. The GP simply referred her for chiropody, which relieved her symptoms to a point, as did Ibuprofen.
The Defendants argued that she should have raised her new symptoms with her GP, but the judge considered that this was a lady who played down her symptoms. The Defendants argued that that was not good enough, particularly since both the chiropody notes and relevant X-rays had been destroyed in the interim.
Held: under section 14 of the Limitation Act 1980, which allows Claimants to pursue cases up to three years after their ‘date of knowledge’, a person must know the following facts:
That the injury in question was significant; That the injury was attributable… to the act or omission which is alleged to constitute negligence; The identity of the Defendant.
Knowledge, included knowledge which the Claimant might reasonably be expected to acquire from facts observable or ascertainable by him, or from facts ascertainable with the help of a medical or other appropriate expert, which it was reasonable for him to seek. An objective test must be applied.
As Lord Donaldson, Master of the Rolls, had stated in Halford v Brookes [1991] 1 WLR 428, knowledge did not mean knowing for certain and beyond the possibility of contradiction. It meant knowing with sufficient confidence to justify embarking on the preliminaries to the issue of proceedings. The Claimant must know enough for it to be reasonable to begin to investigate further.
In the present case, the Health Authority argued that the Claimant did have knowledge because of the condition of her foot, which for some 23 years caused her problems, almost to the point of disability.
Mrs Hydes knew that her foot was not right, but in the early days she had been told to limit her expectations for recovery and not to expect too much too soon. It is likely that she thought this for a majority of the intervening years, until she was told the contrary when she consulted another orthopaedic surgeon in 2006. It could not be right that, in the intervening period, she should have assumed or enquired whether the surgery had been appropriate or properly carried out. On many occasions she had been to her GP and had asked if anything more could be done to relieve her symptoms, but she had not been put on notice by the GP that anything was wrong with the surgery in 1983.
Accordingly, the Health Authority had not demonstrated that the Claimant had constructive knowledge within section 14, more than three years before commencing proceedings. Even if this conclusion was wrong, discretion under section 33 of the Limitation Act would be granted because there was insufficient prejudice to a fair trial to demand that the claim be struck out, the claimant had given a truthful and unembellished account, and she had acted as a reasonable person would have done by relying on her GP.
Timothy Ryder (instructed by Bridge McFarland) appeared for the Claimant. Neil Davy (instructed by Browne Jacobson) appeared for the Health Authority.
Comment
It might seem surprising that a claim involving alleged negligence in 1983 was allowed to proceed in 2010, given that the Claimant had experienced continuing problems with her left foot during the intervening period. However, the judge concluded that she did not have sufficient knowledge, within section 14 of the Limitation Act, to be able to bring her claim earlier. That conclusion by itself was sufficient to enable the claim to proceed to a liability hearing. However, the judge decided that even if he was wrong on this point, he would grant the wide-ranging discretion available to him under section 33 of the same Act to allow the case to proceed. This was undoubtedly a very stale claim, but the Health Authority's arguments of prejudice to their case were insufficient to convince the judge that a fair trial was impossible.