Dobbie v Medway Health Authority

JurisdictionEngland & Wales
JudgeTHE MASTER OF THE ROLLS,LORD JUSTICE BELDAM,LORD JUSTICE STEYN
Judgment Date11 May 1994
Judgment citation (vLex)[1994] EWCA Civ J0511-2
CourtCourt of Appeal (Civil Division)
Docket NumberNo. QBENF 92/0667/C
Date11 May 1994
Margaret Neil Dobbie
Plaintiff (Appellant)
and
Medway Health Authority
Defendant (Respondent)

[1994] EWCA Civ J0511-2

(Mr. Justice Otton)

Before: The Master of the Rolls (Sir Thomas Bingham) Lord Justice Beldam and Lord Justice Steyn

No. QBENF 92/0667/C

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

MR. J. BADENOCH Q.C. and MR. NEIL SANDERS (instructed by Messrs Thomson Snell and Passmore, Kent) appeared on behalf of the Plaintiff (Appellant).

MR. M. DOUGLAS (instructed by Messrs Brachers, Kent) appeared on behalf of the Defendant (Respondent).

1

)

THE MASTER OF THE ROLLS
2

THE MASTER OF THE ROLLSThe plaintiff issued her writ in this action on 5 May 1989 and amended it on 10 May. In the amended writ and in her statement of claim served in October 1990 she claimed damages for personal injury arising from the negligent performance of an operation on 27 April 1973. The defendant health authority was sued as the employer of the consultant surgeon who performed the operation.

3

In its defence the health authority pleaded that the plaintiff's claim arose more than 3 years before issue of proceedings and that her cause of action was accordingly statute-barred. Reliance was placed on sections 11 and 14 of the Limitation Act 1980.

4

The plaintiff in her reply denied that her action was statute-barred, but if it was she asked the court to exercise its discretion in her favour under section 33 of the Act.

5

In August 1991 these limitation issues were ordered to be tried as preliminary issues. They were so heard, and on 14 February 1992 Otton J determined both issues against the plaintiff, holding that her cause of action was statute-barred and declining to exercise his discretion in her favour under section 33.

6

The plaintiff appeals against both these rulings.

7

The facts

8

The facts were fully and carefully summarised by Otton J in his judgment. It is unnecessary for present purposes to give more than a brief outline.

9

In 1972 the plaintiff felt a lump in her left breast. She consulted her general practitioner and was eventually referred to a consultant surgeon who examined her and found a lump in the breast. He advised that she should have the lump excised. She was admitted to Sheppey General Hospital on 26 April 1973 to have the lump removed, with a view to its being the subject of diagnostic examination. There was an issue whether the plaintiff consented to anything more than the removal of the lump (namely, whether she also consented to mastectomy if the surgeon considered it necessary) but the judge assumed that her consent was limited to removal of the lump.

10

At operation on 27 April 1973 the consultant excised the lump, which appeared to him to be cancerous, and he proceeded to perform a simple left mastectomy. After operation the lump was sent for microscopic examination and found to be benign. The hospital authority admits that the lump was not examined microscopically before the breast was removed. Facilities for making such examination were not at the time available at the Sheppey General Hospital, but they were available at another hospital in Chatham.

11

The plaintiff had not expected her operation to involve more than removal of the lump, or such tissue as was needed for microscopic examination. When she came round from the anaesthetic she was horrified to find that the whole of her left breast had been removed. But she had no reason then to question the surgeon's judgment. When she learned the result of the microscopic examination she accepted the view of the surgeon and a nurse that she was very fortunate that the growth had not proved to be malignant.

12

The judge found, on very clear evidence, that the effect on the plaintiff of losing her breast had been "devastating". She had as a result suffered severe psychological illness, which had in turn affected her physical health and blighted her enjoyment of life.

13

In May 1988 the plaintiff's daughter told her of a radio programme describing a case similar to hers in which a court had held that the surgeon had been negligent in removing the breast. An article on the front page of the Sunday Times for 15 May 1988 reported the case. The plaintiff made contact with the radio station, and through it with an organisation representing the victims of medical accidents. In due course she consulted solicitors, who issued a writ (as already recorded) on 5 May 1989. In February 1990 a consultant surgeon of high standing advised the plaintiff that the breast should not have been removed until the lump had been excised and examined and found to be malignant. Based on this report, counsel drafted the plaintiff's statement of claim. Although the particulars of negligence were pleaded in a number of sub-paragraphs, the essential thrust of the case was that the breast should not have been removed until the lump had been microscopically examined and found to be malignant.

14

Limitation

15

The ordinary rule is that time begins to run against a claimant when a common law cause of action arises, and the cause of action becomes unenforceable if proceedings have not been started before expiry of a period of years prescribed by statute. This rule may have the harsh effect of defeating what would otherwise be unanswerable claims. But such rules have existed for centuries. They are no doubt designed in part to encourage potential claimants to prosecute their claims with reasonable expedition on pain of being unable to prosecute them at all. But they are also based on the belief that a time comes when, for better or worse, defendants should be effectively relieved from the risk of having to resist stale claims.

16

To this ordinary rule there are of course exceptions. The exception relevant for present purposes affects personal injury claimants. The need for an exception became clear when it was found that employees disabled by industrial disease did not know (and could not have known) that they suffered from the disease, still less that it was caused by their employers' process, until well after the 3-year limitation period for personal injuries had expired.

17

Statutory attempts to mitigate this problem did not prove satisfactory and in 1971 the Law Reform Committee were invited to reconsider the question. In its Twentieth Report (Interim Report on Limitation of Actions : in Personal Injury Claims, Cmnd 5630, May 1974) the Committee reviewed the previous history and certain suggested solutions. The Committee accepted that time should not begin to run before a claimant had knowledge (actual or constructive) both of his injured condition and of its having been caused by an act or omission of the defendant, but was concerned to decide whether the date of knowledge should arrive

(1)on the plaintiff acquiring knowledge of those facts; or

(2)on his acquiring knowledge of those facts and also that he has a worthwhile cause of action against the defendant; or

(3)at some intermediate point between these states of knowledge, as for example on his becoming aware, in the words of Lord Pearson "(as a matter of fact in the same manner as a jury would decide) that the defendants were at fault and that his injuries were attributable to their fault." See Central Asbestos Co Ltd v Dodd (1973) AC 518, 545.

18

For reasons given in the report, the Committee rejected (2). The Committee also rejected (3), taking the view that if there was to be an extension of time from the date of knowledge as of right such date must be capable of precise definition and that the concept of fault lacked the necessary precision. The Committee accordingly favoured (1). But it recognised that this test could cause hardship to prospective plaintiffs in a small number of cases, and advised that there should be a residual discretion in the court to extend time even when action had not been brought within 3 years of the date of knowledge as defined in (1). These recommendations were accepted : they found substantial expression in the Limitation Act 1975, and were in due course consolidated in the Limitation Act 1980.

19

The 1980 Act : sections 11 and 14 .

20

These sections provide (so far as relevant to the present appeal) as follows :

" Special time limit for actions in respect of personal injuries

11.-(1) This section applies to any action for damages for negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or of provision made by or under a statute or independently of any contract or any such provision) where the damages claimed by the plaintiff for the negligence, nuisance or breach of duty consist of or include damages in respect of personal injuries to the plaintiff or any other person.

21

(3) An action to which this section applies shall not be brought after the expiration of the period applicable in accordance with subsection ( 4) or (5) below.

(4) Except where subsection (5) below applies, the period applicable is three years from-

(a)the date on which the cause of action accrued; or

(b)the date of knowledge (if later) of the person injured."

"Definition of date of knowledge for purposes of sections 11 and 12

14.-(1)… In sections 11 and 12 of this Act references to a person's date of knowledge are references to the date on which he first had knowledge of the following facts-

(a)that the injury in question was significant; and

(b)that the injury was attributable in whole or in part to the act or omission which is alleged to constitute negligence, nuisance or breach of duty; and …

and knowledge that any acts or omissions did or did...

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