Jonathan Carl Khairule v North West Strategic Health Authority
| Jurisdiction | England & Wales |
| Judge | Mrs. Justice Cox :,THE HONOURABLE MRS JUSTICE COX DBE |
| Judgment Date | 04 July 2008 |
| Neutral Citation | [2008] EWHC 1537 (QB) |
| Docket Number | Case No: 6BM08097 |
| Court | Queen's Bench Division |
| Date | 04 July 2008 |
[2008] EWHC 1537 (QB)
The Honourable Mrs Justice Cox Dbe
Case No: 6BM08097
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Maskrey QC (instructed by Messrs. Irwin Mitchell, Solicitors) for the Claimant
Mr Westcott QC (instructed by Messrs. Hempsons, Solicitors) for the Defendant
Hearing dates: 17, 18 & 19 March 2008
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Introduction
The Claimant, Jonathan Khairule, was born by emergency caesarean section at 21.25 on 18 June 1981 at the Tameside General Hospital. His mother, Verna Edwards, was then just 18 and the Claimant was her first baby.
At birth the Claimant's condition was described as “very poor”. His Apgar score remained 1 at 5 minutes. He was intubated and resuscitated in theatre and transferred to the SCBU. He went on to develop a hypoxic-ischaemic encephalopathy and, at some point during the first year of his life, he was diagnosed as suffering from an athetoid form of cerebral palsy, with preservation of intellect.
A letter of claim dated 6 March 2006 was sent to the Defendants' solicitors, in accordance with the clinical negligence disputes pre-action protocol, and proceedings were subsequently issued against the Defendants on 26 July 2006. The Claimant alleges, essentially, that he suffered profound asphyxiation leading to circulatory collapse at around the time of his birth; that the period of pre-delivery asphyxial insult continued for a further 5 to 10 minutes after his birth; and that the total period of hypoxia caused the damage to his brain and the athetoid form of cerebral palsy from which he suffers. It is not in dispute on the pleadings that, had the Claimant been born just 5 minutes earlier, at or before 21.20, he would probably not have sustained brain damage.
The Claimant alleges that his brain damage was caused by the negligence of the medical and midwifery staff attending his mother's labour, in particular in restarting the Syntocinon infusion at 21.00 hours; in attempting unsuccessfully to deliver the Claimant vaginally, first by Ventouse extraction and then by forceps; and in failing to decide to deliver him by caesarean section well before 21.00 hours. All the allegations of breach of duty are denied, the Defendants contending that the labour and delivery were managed entirely in accordance with appropriate contemporary practice.
The Defendants also raised a limitation defence and it is common ground that, since the Claimant reached his age of majority on 18 June 1999, the primary limitation period under section 11 of the Limitation Act 1980 (the Act), subject to the Claimant's date of knowledge, expired on 18 June 2002. By special agreement of the parties the notional date of commencement of this action is 6 March 2006.
The Claimant's case is that his date of knowledge (actual or constructive) was in November 2005, when he received supportive expert opinion confirming that his injury was capable of being attributable to the acts or omissions now relied on in the Particulars of Claim as constituting negligence for which the Defendants are liable. Alternatively it is said that his date of knowledge was no earlier than the 27 July or the 7 March 2003 (three years before the actual or notional date of issue of proceedings).
By order of the Court the question whether the Claimant's action is statute-barred was tried before me as a preliminary issue. The agreed issues were therefore:
(a) whether the action was commenced within three years of the Claimant's date of knowledge, as defined by section 14 of the Act; and
(b) if not, whether the Court should exercise its discretion to disapply section 11 by virtue of section 33.
By the date of the hearing before me the Defendants were no longer contending that, before 6 March 2003, the Claimant had actual knowledge of those matters listed in section 14(1). It was therefore unnecessary for me to hear oral evidence from the Claimant, who denies that he did. The hearing therefore proceeded on the basis of the parties' submissions as to the Claimant's constructive knowledge; and, if I found that he ought to have had the relevant knowledge before 6 March 2003, whether I should exercise the section 33 discretion in his favour and allow the claim to proceed.
I have determined these issues on the basis of the agreed bundles of documents, including the witness statements of the Claimant and his responses to further questions; the witness statements of Lindsay Gibb and Amanda Callaghan of the Claimant's and Defendants' solicitors respectively; and the medical reports of Mr. Jarvis (12/7/06) and Mr Thomas (21/8/07), consultant obstetricians and gynaecologists instructed by the parties, and of Professor McLellan (4/5/06, 18/9/07 and 14/1 and 6/3/08), consultant neurologist and professor of rehabilitation, instructed on behalf of the Claimant. At the invitation of the parties, following the conclusion of oral submissions, I have also viewed a “day in the life” DVD showing the Claimant carrying out various daily activities, and have read the core bundles of various medical and social services/education records, which were extensive.
The Factual Background
The Claimant is now aged 27. The effects of his athetotic cerebral palsy and his resulting abilities and disabilities are helpfully summarised in Professor McLellan's reports. His is a pattern of cerebral palsy in which the limbs, trunk, neck and face are involved in continual, involuntary movements and in which the limbs flex and extend in a jerking or writhing motion. The intensity and force of these movements or spasms is less when he is relaxed and greater when he is attempting any form of voluntary activity, or is excited or upset. The Claimant currently spends a great deal of his time in a wheelchair, which he mobilises with the assistance of a personal carer, who also helps to feed, wash and dress him and to move him when he is out of his wheelchair. He is able to travel on buses and in a car, although he does not often do so.
Despite his very severe physical difficulties, the Claimant has been in general good health over the years. His intellect has been preserved. Professor McLellan's impression, on examination, is that the Claimant is someone of normal intelligence or even of “above average intelligence,” with the “personality and intellectual ability to undertake further education and possibly employment”. His sight and hearing are normal. However, a major problem for him is his inability to speak and his method of communication, since about 1998, has been via a Litewriter, in which individual letters can be displayed by touching the appropriate key with his nose. He also has a personal computer, using a similar method for operating that keyboard, and a special mouse, which enables him to use the computer independently. Since the Claimant cannot use a telephone he uses on-line instant messaging or email to communicate with others. Typing one letter at a time is a tedious process, as Professor McLellan describes, “which requires considerable concentration and is also tiring and causes considerable discomfort around the neck and head”. The Claimant has had to be “very single-minded in concentrating as far as he possibly can on his present and future needs” and has had to overcome “very considerable problems” (see page 163c of the bundle).
The Claimant's childhood years and home background are described as “very unsatisfactory”. Having read the documents, and in particular some of the social services records, I agree with that assessment and with Professor McLellan's observation that “his upbringing took place in very adverse circumstances and … he has never received adequate support from his family.” The Claimant does not remember his father and describes living in an abusive home and being physically and emotionally neglected. There were serious concerns as to his mother's ability to care for him. There are references to his mother's problems with alcohol and substance abuse and the Claimant was, at one stage, placed on the Child Protection Register. He was regularly seen at hospital due to concerns as to his nutritional and physical development.
In spite of, or perhaps because of, these disadvantages the Claimant at school showed himself to be an “independent little boy with a stubborn streak” and an “active intellect” who, despite difficulties in making himself understood “never gave up” until he got his meaning across. At secondary school reports referred to him as a boy who “talks and listens confidently in a wide range of contexts”; who “pays close attention to what others say, asking questions and making contributions which develop ideas and takes account of others' views while conveying his own opinions”. In 1997 he was said to show “understanding of a range of texts, selecting essential points and using inference and deduction as appropriate”. It was said of him that “he retrieves and collates information from a range of sources”.
There are also references to him being “very bright” and “very intelligent” although, as Professor McLellan points out, the Claimant was attending special rather than mainstream schools, where summaries of educational progress prepared by staff traditionally tend to emphasise the positive aspects of a student's performance and to understate the problems. The Claimant left school in 1997 with three GCSEs in Maths (Grade D), Science (D) and English (E).
The Claimant describes being desperate to leave home, even...
To continue reading
Request your trial
-
Whiston v London Strategic Health Authority
...this case from that of a claimant who is injured during adulthood. He relies on a passage in the judgment of Cox J in Khairule v North West Strategic Health Authority [2008] EWHC 1537 (QB) at para 60: “When assessing the extent to which someone is reasonably to be expected to be curious as ......
-
Whiston v London Strategic Health Authority
...on the Claimant's behalf, to have in mind the summary of the principles contained in the recent judgment of Cox J in Khairule v North West Strategic Health Authority [2008] EWHC 1537 (QB) and specifically at [49]–[58]. Although her Ladyship there appears to embrace comparable intellect when......
-
Carl Watson v National Petroleum Company; Grace Gill v The Attorney General
...Tiles Ltd [1994] (CA) Lexis Citation 3425 per both Nourse LJ and Ward LJ; cf Khairule v North West Strategic Health Authority, [2008] EWHC 1537 (QB) @ para 103 —“section 33(3)(d), concerning a Claimant who is under a legal disability, does not arise in this 29 Yates v Thakeham Tiles Ltd., ......
-
Joseph Johnson v Ministry of Defence (First Respondent) Hobourn Eaton Ltd (the period applicable is threeSecond Respondent)
...as for example in Whiston v London Strategic Health Authority [2010] EWCA Civ 195 and Khairule v North West Strategic Health Authority [2008]EWHC 1537 (QB)per Cox J. Mr Levene submitted that, although noise induced deafness was not present from birth, it was of insidious onset and there wer......