Coad v Cornwall and Isles of Scilly Health Authority
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE ROSE,LORD JUSTICE WARD,LORD JUSTICE JUDGE |
| Judgment Date | 01 July 1996 |
| Judgment citation (vLex) | [1996] EWCA Civ J0701-8 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | No QBENF 95/0955/C |
| Date | 01 July 1996 |
[1996] EWCA Civ J0701-8
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ORDER OF HIS HONOUR JUDGE THOMPSON QC
Royal Courts of Justice
Strand
London WC2
Lord Justice Rose
Lord Justice Ward
Lord Justice Judge
No QBENF 95/0955/C
MR WILLIAM EDIS (Instructed by Bevan Ashford of Bristol) appeared on behalf of the Appellant
MR COLIN MACKAY QC and MR JOHN WILSON (Instructed by John Boyle of Redruth) appeared on behalf of the Respondent
Lord Justice Ward will give the first judgment.
This is an appeal against the order of His Honour Judge Thompson QC made on 5th May 1995 when, on the hearing of a preliminary issue, he ordered that the plaintiff be allowed to continue with her action for damages for personal injuries against the health authority, the court, in the exercise of its discretion under Section 33 of the Limitation Act 1980, having disapplied the time limit specified in Section 11 of that Act.
The plaintiff in this action is a lady aged 40 years. She had formerly been employed by the defendants as a state enrolled nurse at a hospital under their control, being the Tehidy Hospital in Camborne. The incident giving rise to the claim, occurred at 6.20 in the evening of 29th August 1983. The plaintiff was on duty in ward 5 where one of their patients was a quadriplegic man, weighing some 12st. He fell from his chair on to the floor. In trying to lift him off the floor back into his chair, the plaintiff hurt her back. She was off work for 4 1/2 months until January 1984. Part of that time was due to personal problems that do not concern us. She went for assessment of her disability which was fixed in February 1984 at 3%. She was eventually paid a disability allowance. She had not been a member of the Royal College of Nurses at the time of her accident nor a member of any other trade union. She did telephone the Royal College to ask if she should accept the offer of disability money and was told that she should. She was not given further professional advice.
The proceedings were not instituted until a writ was issued in January 1993. These proceedings, begun 9 1/2 years after the event, were out of time. The question was whether the judge should have allowed her to proceed.
In further elaboration of that, it appeared that the plaintiff had trained with the defendants during 1972–1974 and had been taught procedures for lifting patients into bed and the general practice of using the Australian lift. She worked for the defendants until 1977 when she gave up work to start her family. She returned to work in June 1983, some 2 months or so before her accident.
Her account of the evening was that she should have been on duty in ward 6, but there were shortages of staff which meant that one of the three nurses on ward 6—herself—should be sent to cover ward 5 where only one nurse was apparently on duty. That nurse was an auxiliary, Mr Walters. Why the patient fell from his chair is, of course, uncertain, but there seems little doubt that he did so. He was the victim of a riding accident. He was a quadriplegic. He had lost the power of speech. The plaintiff was, not unnaturally, concerned for him. She considered obtaining further help, but decided that all that was available for her was Mr Walter. No lifting gear was available in wards 5 or 6 to assist in getting the patient back to his chair. Whether or not there was lifting material in other wards, they were, she said, about quarter-of-a-mile away and she did not feel justified in delaying her attempts to assist her patient. She tried therefore, with Mr Walter's help, to get him up, but felt sudden pain in her back and legs and she was taken off for medical treatment herself. She was sent home to bed and she was off work for some time.
She returned to work and continued to suffer back pain and that was with her throughout. She transferred in November 1994 to another hospital, partly, it would seem, to ease the difficulty she had on the ward and perhaps also because of an invitation extended to her by one of the consultants who was himself transferred to that other hospital. She had time off work in January 1988 because of her back problems, but she soldiered on until May 1990 when a bad relapse led her to undertake further investigations. The CT scans in the summer of 1990 revealed bulging of the lumbar vertebrae which did not improve with treatment. She underwent a lumbar
discectomy which showed more significant damage. She realised that she would never work again. She, therefore, contacted the Royal College of Nursing whose membership she had joined. She did that in January 1991 and consulted solicitors a month later in February 1991. She also learned in March 1991 that a nurse at another hospital had succeeded in establishing her claim for damages and there was correspondence in the nursing journals which seemed to indicate that many laboured in ignorance of their rights of action against their employers.
The upshot, therefore, is that having taken legal advice, having been granted legal aid and having received the various medical reports, it was not until the 5th July 1993 that she gave notice of her claim some 8 years (less a month) after the date of her accident.
The learned judge's first decision was to rule for the purpose of Section 11 of the Limitation Act 1980, when the cause of action arose and when, for Section 11 (4), she acquired the relevant knowledge. It is Section 14 of the Act which assists in defining the date upon which knowledge was first acquired. The relevant criteria are to judge whether the injury in question was significant, whether it was attributable in whole or in part to the act or omission alleged to constitute the negligence, the identity of the defendant and so forth. Knowledge that any act or omission did or did not, as matter of law, involve negligence or breach of duty is treated as irrelevant. For the purpose of Section 14 the requisite knowledge is knowledge which could reasonably be expected of the plaintiff. It is in every sense, therefore, an
objective test including whether or not the plaintiff has taken all reasonable steps to obtain and, where appropriate, to act on advice. That decision was answered by the learned judge in the defendants' favour. He had no difficulty, having applied appropriate principles, in finding that time started to run against the plaintiff from 29th August 1983 when the cause of action arose. There is no challenge by the plaintiff against that finding.
Accordingly, the judge turned his attention to Section 33 of the Act to decide whether the time barring effect of Section 11 should be disapplied. Section 33 is in these terms:
"(1) If it appears to the court that it would be equitable to allow an action to proceed having regard to the degree to which —
(a) the provisions of section 11 ….. of this Act prejudice the plaintiff ….. and
(b) any decision of the court under this subsection would prejudice the defendant …..
The court may direct that those provisions shall not apply to the action ….. "
The material subsection is subsection 3 which is in these terms:
"In acting under this section the court shall have regard to all the circumstances of the case and in particular to —
(a) the length of, and reasons for, the delay on the part of the plaintiff;
(b) the extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the plaintiff or the defendant is or is likely to be less cogent than if the action had been brought within the time limit allowed by section 11 …..
(c) the conduct of the defendant ….. "
(which I need not read in detail because it does not apply.)
(d) the duration of any disability of the plaintiff ….. " —
(that again is not material),
"(e) the extent to which the plaintiff acted promptly and reasonably once he knew whether or not the act or omission of the defendant, to which the injury was attributable, might be capable at that time of giving rise to an action for damages;
(f) the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice, and the nature of any such advice he may have received."
The learned judge considered subsection (3). He observed that most of the criticism of the plaintiff was directed to subsections (a) and (b), that, as I have indicated, (c) and (d) did not arise. He then said this:
"As I have already noted no criticism is made of the Plaintiff from February 1991 onwards, thus I need not consider (e). I propose to consider (a) the length of and the reasons for the delay on the part of the Plaintiff together with (f) the steps taken by the Plaintiff to obtain medical, legal or other expert advice and the nature of any such advice that she may have received, and then to go on to consider (b) `cogency' separately."
His first task was to make his findings on what is material under (a), the reasons for the delay on the part of the plaintiff. He found this (page 9):
"Her explanation for the delay was quite simply this. She said she did not know and did not realise that she could bring an action against the Defendants as she was able to return to work after the accident. She thought that it was only if she was incapacitated and unable to work that she had a right of action. It was only when her condition deteriorated and she realised that she would not be able to return to work that she thought she could bring an action against the Defendants. It was at about that time that her attention was also drawn to a newspaper article about a nurse in a similar...
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