Kara Rayner v Wolferstans (A Firm)(1st Defendant) Medway Nhs Foundation Trust (2nd Defendant)
| Jurisdiction | England & Wales |
| Judge | The Honourable Mr Justice Wilkie |
| Judgment Date | 23 October 2015 |
| Neutral Citation | [2015] EWHC 2957 (QB) |
| Docket Number | Case No: HQ13X04367 |
| Court | Queen's Bench Division |
| Date | 23 October 2015 |
[2015] EWHC 2957 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CENTRAL DISTRICT REGISTRY
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Wilkie
Case No: HQ13X04367
Mr Picton QC (instructed by Walker Smith Way) for the Claimant
Mr Pooles QC and Miss Ferguson (instructed by Bond Dickinson LLP) for the 1 st Defendant
Miss Woodbridge (instructed by Kennedys) for the 2 nd Defendant
Hearing dates: 12 th– 13 th October 2015
INTRODUCTION AND LITIGATION BACKGROUND
The claimant was a patient of the 2 nd defendant ("Medway") when she gave birth to her second child at Medway Maritime Hospital on 5 th January 2004. During the birth she was given an epidural. She asserted this led to immediate pain and discomfort. She was discharged home on 9 th January she states without having had proper consideration of her symptoms. Having been readmitted on 28 th January she was diagnosed on 30 th January as having developed hydrocephalus. She had surgery at King's College Hospital in London on 31 st January when a ventriculo-peritoneal shunt was inserted. She had from the 5 th January neurological symptoms in her lower spine and legs. She has continued to suffer a significant disability since that date. Her claim is that these injuries were said to be due to the negligence of Medway through its anaesthetic team who administered the epidural.
In June 2004 the claimant retained the 1 st defendant firm ("Wolferstans") to act as Solicitors for her to investigate a prospective claim against Medway. Wolferstans obtained public funding for the investigation from the Legal Aid Board and instructed medical experts: Professor Schapira, a consultant neurologist; and Dr Bogod, a consultant anaesthetist. Professor Schapira advised in February 2006 that it was likely that the claimant had sustained damage during the epidural procedure which either directly, or indirectly, led to the development of hydrocephalus. He suggested that further investigations be carried out, which would include an MRI scan of the spine. Dr Bogod, a consultant anaesthetist, expressed the view, by his report of 1 st April 2006 that the claimant had probably suffered a dural puncture. Dr Bogod said that this explanation, which was unlikely to involve any negligence on the part of the clinician involved, could potentially be overridden if an MRI scan revealed evidence of direct damage to the spinal cord by the epidural needle, in which case, he advised, there would be negligence present.
Wolferstans took steps to arrange an MRI scan. A number of appointments were made for the claimant to attend, which she cancelled or failed to attend. Eventually, she attended in January 2007, but the scan could not go ahead as she was in too much pain, was unable to lie still and was experiencing claustrophobia. There were discussions as to how a general anaesthetic might assist her to have a scan. A further scan was arranged during April 2007 which, again, was not successfully completed.
During this period Wolferstans obtained from Medway extensions to the primary limitation period which, it was believed, would expire on 5 th January 2007, three years from the date of the epidural. However, without any further evidence from an MRI scan, neither expert felt able to support a case for negligence. On 26 th July 2007, Wolferstans advised the claimant that she should discontinue her claim and that they would inform the Legal Aid Board so that public funding would be withdrawn. The claimant provided such instructions on or about 15 th August 2007 and on 7 th September 2007 public funding was withdrawn. The final agreed extension to the primary limitation period expired on 7 th September 2007.
The claimant continued to need treatment for her conditions. She was successfully given an MRI scan in August 2010. That scan resulted in a diagnosis of arachnoiditis, inflammation of the arachnoid membrane, one of the membranes surrounding and protecting the nerves of the central nervous system, including the brain and spinal cord. This was the first time that the claimant became aware of this condition, which was not caused by direct trauma to the spinal cord.
In August 2010, the claimant retained her current solicitors but did not then pursue a claim against Medway. She had been advised and acted on the basis that her claim against Medway was statute barred. She was minded to pursue a professional negligence claim against Wolferstans. Medical reports were obtained to that end including a second report from Dr Bogod dated 19 th April 2012. This report first raised the suggestion that the probable cause of the arachnoiditis was the introduction of a contaminant, chlorhexidine, during the epidural procedure. Dr Bogod considered that this would lead to a conclusion of negligence on the part of Medway.
The claimant issued proceedings against Wolferstans on 2 nd September 2013 alleging that, due to Wolferstans' negligence and/or breach of contract, she had lost the chance to recover damages from Medway. Wolferstans has defended that case, amongst other ways, on the basis that no such loss of chance had occurred at that point. They say that, as the claimant had three years to bring a claim from her date of knowledge pursuant to section 11(4)(a) of the Limitation Act 1980 and as such knowledge arose no earlier than 19 th April 2012, the date of Dr Bogod's second report, her claim against Medway remained valid and live at the date of issue of the proceedings against Wolferstans.
The claimant issued a claim form against Medway on 28 th August 2014 reflecting the outcome of the report of Dr Bogod dated 19 th April 2012. Medway defends that claim on the basis that the claim is statute barred, that the date of knowledge for the purposes of section 11(4)(a) of the Limitation Act was January 2004, when the claimant was aware that she had suffered a significant injury that she attributed to the administration of the epidural or, by the latest, the 22 nd July 2004 when she signed her statement supporting her claim for the purposes of obtaining Legal Aid.
On the assumption that the claimant's claim against Medway was out of time, and on the footing that a claim against Medway would be made out, Wolferstans have also pleaded that the claimant has failed to mitigate her loss by failing to apply to the Court, pursuant to section 33 of the Limitation Act 1980, requesting the Court to exercise its discretion to permit the claimant to pursue its claim against Medway, by disapplying s. 11 of the Limitation Act. The claimant has made such an application.
By an order of Master McCloud dated 6 th February 2015, the claimant's action against Medway was consolidated with her action against Wolferstans and provision was made for a case management conference to be held on the 18 th May 2015 to consider listing preliminary issues in relation to limitation and the application of section 33.
Master McCloud made directions in an order dated 8 th June 2015 including the following paragraph defining the preliminary issues as follows:
"For the purposes of sections 11(4) and 14(1) of the Limitation Act 1980 when did the claimant acquire the requisite knowledge for the purpose of her claim against the Medway NHS Trust and in particular
1. Did the claimant acquire such knowledge by no later than 22 nd July 2004?
2. Did the claimant acquire such knowledge some time between 16 th August 2011 and 19 th April 2012?
3. Did the claimant acquire such knowledge on a date prior to 2 nd September 2010 being three years prior to the issue of the claim form against Wolferstans?
4. At the date of issue of the claim form against Wolferstans on 2 nd September 2013 had the claimant lost the chance to pursue her claim against the Medway?
5. At the date of issue of the claim on 2 nd September 2013 was the claim against Wolferstans in contract statute barred pursuant to section 5 of the Limitation Act?"
Master McCloud also ordered that these preliminary issues be listed together with the claimant's application under section 33 of the Limitation Act 1980.
THE RELEVANT STATUTE AND CASE LAW
The Limitation Act 1980 section 11 provides:
"11(1) This section applies to any application for damages for negligence, nuisance or breach of duty … 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 …
(2) None of the time limits given in the preceding provisions of this Act shall apply to an action to which this section applies
(3) An action to which this section applies shall not be brought after the expiration of the period applicable in accordance with sub-section ( 4) or (5) below
(4) Except where sub-section (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 … "
Section 14 of the 1980 Act provides for the date of knowledge for the purposes of section 11. It provides as follows
"14(1) … in sections 11 … 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;
(c) The identity of the defendant, and
(d) If it is...
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...could not possibly be said, in any realistic way, to be Mr Corbin's fault.” 72 In the case of Rayner v. Wolferstans (A Firm) [2015] EWHC 2957 (QB) Wilkie J, pointed out in the context of a s.33 application that an action against a claimant's former solicitor was one for loss of a chance an......