healthcare update - issue 12
Dangers of the limitation defence
A Cambridge graduate has won the right in the Court of Appeal to
proceed with his claim for damages against the health authority
which was responsible for the management of his birth, more than 30
years ago. On the face of it, this claim had been brought over ten
years out of time under the current law on limitation. The ruling
highlights the increasing difficulties for Defendants in relying on
the so called Limitation defence, and provides yet another example
of the Courts' resistance to striking out claims that would appear
to be out of time.
Julias Whiston suffers from cerebral palsy, which he alleges is
as a result of oxygen deprivation at the time of his birth in
September 1974. Mr Whiston commenced legal proceedings against The
London Strategic Health Authority on 17 October 2006. The defendant
health authority, which denies negligence, maintained that Mr
Whiston’s claim had been brought outside of the primary time limit
which, for birth injury victims like Mr Whiston who are not
mentally impaired, is three years after the claimant’s 18th
birthday.
The issue of limitation was heard at a preliminary trial in the
High Court in April last year. It was submitted on behalf of the
health authority that Mr Whiston had been aware on or before his
18th birthday that he had significant disabilities and that they
were connected with the circumstances of his birth. Alternatively,
a reasonable person, in Mr Whiston’s position, would have made
enquiries and acquired knowledge of the fact that his injuries were
attributable to the acts or omissions of medical staff which he now
alleges constitute negligence. It was also submitted that the claim
had been brought so late that a fair trial would no longer be
possible, and therefore the court should not exercise its
discretion to disapply the statutory time limits to allow the claim
to proceed. Memories had faded and documents, including the key CTG
record, had been lost or destroyed in the years since the
birth.
Mr Whiston claimed his condition had been stable during his
years at Eton and Cambridge University but that his condition
dramatically deteriorated when he was in his twenties. In November
2005 his mother, a trained midwife, decided to speak to Mr Whiston
about the circumstances of his birth, and told him of her suspicion
that his cerebral palsy may have been caused by the negligence of a
junior doctor, who spent half an hour attempting to carry out a
forceps delivery. Mr Justice Eady ruled that it was only following
this discussion that Mr Whiston gained the relevant knowledge that
his disability might be attributable to acts or omissions by the
medical staff, and until then Mr Whiston thought his condition was
"just one of those things". Therefore, the limitation period only
began to run from November 2005 when Mr Whiston first realised that
he might be able to sue. Mr Justice Eady did comment that if he had
been asked to exercise the court’s discretion to disapply the
statutory time bar, he would have ruled in the defendant’s favour
as the prejudice to the defendant would have been too extreme.
The case was heard on appeal by Lord Justice Dyson, sitting with
Lord Justice Longmore and Lady Justice Smith. The health
authority’s submission that Mr Justice Eady was wrong to find that
Mr Whiston did not have constructive knowledge until November 2005
was upheld. A reasonable claimant, in the circumstances of Mr
Whiston, would have made enquiries of his mother about his delivery
at an earlier date. If he had made these enquiries he would have
been told about the circumstances of his birth and he would have
acquired knowledge of the fact that his injury was attributable to
the acts or omissions which he now alleges constitute negligence.
Mr Whiston therefore had constructive knowledge of these facts when
he was in his early 20’s, by 1998.
The appeal court was invited by the claimant to take into
account all of the circumstances of the case in deciding whether it
would now be equitable to disapply the limitation period. Lord
Justice Dyson ruled that a fair trial was still possible and fading
memories “were of little, if any, significance”. If Mr Whiston was
not permitted to pursue the claim he would lose the prospect of
recovering damages for his serious condition, and the prospect of
provision for his future needs. It would therefore be equitable to
allow the claim to proceed out of time.
This ruling demonstrates the increasing resistance of the courts
to impose the so called “limitation defence” in clinical negligence
cases. Cogency of evidence no longer appears to be a bar to claims,
and NHS trusts must therefore do all they can to help themselves
defend these claims in the future. It emphasises the importance of
record keeping, which in some cases will be the only evidence on
which to mount a defence, and pro-active investigation at the time
of an incident.
talk to us
save to PDF
The content of this update is provided for the purposes of
general interest and information. It contains only brief summaries
of aspects of the subject matter and does not provide comprehensive
statements of the law. It does not constitute legal advice and does
not provide a substitute for it.