Clinical negligence – Actual knowledge – Birth defects – Cerebal palsy
Whiston v London Strategic Health Authority (successor body in law for Queen Charlotte's Maternity Hospital): CA (Civ Div) (Lords Justice Dyson, Longmore, Lady Justice Smith): 5 March 2010
The appellant health authority appealed against a decision ( EWHC 956 (QB),  LS Law Medical 355) that the clinical negligence claim of the respondent (W) was not statute-barred. W cross-appealed against the decision that, had the claim been statute-barred, the court would not exercise its discretion under section 33 of the Limitation Act 1980 to disapply section 11.
W suffered from cerebral palsy caused by brain damage sustained at his birth in the authority’s hospital in 1974. He brought proceedings in 2006 alleging that the authority had been negligent. He alleged that his birth had been attended by a junior doctor, who tried for over half an hour to deliver W using forceps before summoning a more experienced registrar, who then delivered W within five minutes using different forceps. W’s mother (M) was a nurse and had been trained as a midwife, and was concerned about her treatment. M described W’s health as stable until 2005, when his condition worsened. She then told W of her concerns, prompting him to bring the claim. W stated that he had previously known that he had been delivered by forceps and that his condition was caused by a lack of oxygen at birth, but had never investigated further as he had generally felt unimpeded by his condition. The judge held that, for the purposes of sections 11 and 14, W had had neither actual nor constructive knowledge of the alleged negligence before 2005, but also that he would not have exercised his discretion under section 33 had the claim been statute-barred. The authority argued that: (1) W had had actual knowledge of the alleged negligence before 2005, as he knew that he had been born using forceps; (2) the judge had used a subjective test in determining constructive knowledge, whereas Lord Hoffmann’s judgment in Adams v Bracknell Forest BC  UKHL 29, (2005) 1 AC 76 required an objective test under which it was assumed that in all cases where a person had suffered serious injury, he would be sufficiently curious to ask questions about it, and he should be fixed with knowledge of the facts he would have learned if he had asked.
Held: (1) The fact that W’s delivery had been by forceps did not capture the essence of his claim. The essence of the case was that his injury was attributable to the junior doctor's persistence, his use of the wrong forceps, and his delay in seeking assistance. The judge had been right to determine the actual knowledge issue in W’s favour.
(2) Although he had purported to apply an objective test, the judge had considered subjective matters and his decision could not stand. The test the authority relied on in Adams was not part of the ratio of that case, Adams considered. Nor was it what section 14(3) required: it did not provide that actual or constructive knowledge that the injury was significant was determinative of the constructive knowledge issue. Instead, the issue should be determined by reference to the knowledge which a person might reasonably be expected to acquire, depending on all the circumstances of the case. Adams and the existence of the discretion in section 33 heightened the requirements of constructive knowledge and the degree of curiosity of the reasonable claimant. W knew his injury was significant. Had he asked M about his delivery, she would have told him what she told him in 2005 and he would have acquired knowledge of the alleged negligence. There would come a time when a reasonable person in W’s circumstances would ask his mother, particularly since she was a nurse and a midwife. He would have known that she, as a trained person, would be able to answer his questions. In those circumstances, W would have had constructive knowledge no later than his early 20s, and the claim was statute-barred.
(3) The fact that a fair trial was not impossible did not necessarily determine the question of whether it would be equitable to allow the action to proceed under section 33. The judge had considered the prejudice the authority would suffer, but had nowhere mentioned the prejudice W would suffer if he could not prosecute his claim. He had also been wrong to take M’s decision not to sue into account as the only reason for delay: there was no basis for finding that W had made a decision not to sue when he acquired constructive knowledge of the alleged negligence. It was therefore necessary to exercise the section 33 discretion afresh. A fair trial was still possible. However, that was not decisive: it was necessary to have regard to all the circumstances of the case, including the factors set out in section 33. It was important that W had not made a decision not to start proceedings once he actually knew he had a claim. Further, W had suffered serious injury for which he would be awarded substantial damages. If he was not permitted to pursue the claim, he would lose all prospect of his future needs being provided for. Weighing all those factors, it would be equitable to allow the claim to proceed.
Appeal allowed, cross-appeal allowed.
Michael de Navarro QC (instructed by Barlow Lyde & Gilbert) for the appellant; Phillip Havers QC (instructed by Parlett Kent) for the respondent.