Ms Joanne Chinnock v Veale Wasbrough and Another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Jackson,Mr Justice Roth,Lord Justice Longmore |
| Judgment Date | 07 March 2015 |
| Neutral Citation | [2015] EWCA Civ 441 |
| Docket Number | Case No: A2/2014/0110 |
| Court | Court of Appeal (Civil Division) |
| Date | 07 March 2015 |
[2015] EWCA Civ 441
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
THE HONOURABLE MR JUSTICE DINGEMANS
HQ12X03620 and HQ12X04108
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Longmore
Lord Justice Jackson
and
Mr Justice Roth
Case No: A2/2014/0110
Mr Michael Redfern QC and Mr Sufiyan Rana (instructed by Gregory Abrams Davidson LLP) for the Appellant
Mr Mark Cannon QC (instructed by Henmans Freeth) for the First Respondent and Mr Jamie SmithQC (instructed by Weightmans LLP) for the Second Respondent
Hearing date: 18 th March 2015
This judgment is in eight parts, namely:
| Part 1. Introduction | Paragraphs 2 to 6 |
| Part 2. The facts | Paragraphs 7 to 29 |
| Part 3. The present proceedings | Paragraphs 30 to 34 |
| Part 4. The appeal to the Court of Appeal | Paragraphs 35 to 40 |
| Part 5. Was the barrister negligent? | Paragraphs 41 to 71 |
| Part 6. Were the solicitors negligent? | Paragraphs 72 to 79 |
| Part 7. Limitation | Paragraphs 80 to 92 |
| Part 8. Executive summary and conclusion | Paragraphs 93 to 96 |
This is an appeal against a decision that (a) the barrister and solicitors who advised the claimant to abandon an earlier clinical negligence claim were not negligent and (b) the claimant's present proceedings are statute barred. The principal issues in this appeal are how reasonably competent lawyers should have analysed the advisory duties of medical practitioners in 2001 and what (in the present context) constitutes "knowledge" for the purposes of section 14A of the Limitation Act 1980.
The claimants in the proceedings at first instance were Ms Joanne Chinnock and Mr Paul Schumann. I shall sometimes refer to them jointly as "the parents". Ms Chinnock is the appellant in this court. Mr Schumann has now dropped out of the proceedings. The defendants at first instance were a firm of solicitors, Veale Wasbrough, and a barrister Ms Karen Rea. They are respondents in the present appeal.
The following medical terms are relevant:
Amniocentesis is a diagnostic genetic test on a sample of amniotic fluid taken from the womb.
Cordocentesis is a diagnostic genetic test on a sample of blood taken from the umbilical cord
Chorionic villus sampling ("CVS") means taking cells from the placenta for the purpose of testing.
Trisomy means having all or part of a chromosome in triplicate, rather than duplicate as is usual. Trisomy can result in a variety of disabilities, for example Down's syndrome.
Section 14A of the Limitation Act 1980 provides:
" Special time limit for negligence actions where facts relevant to cause of action are not known at date of accrual.
(1) This section applies to any action for damages for negligence, other than one to which section 11 of this Act applies, where the starting date for reckoning the period of limitation under subsection (4)(b) below falls after the date on which the cause of action accrued.
(2) Section 2 of this Act shall not 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 subsection (4) below.
(4) That period is either—
(a) six years from the date on which the cause of action accrued; or
(b) three years from the starting date as defined by subsection (5) below, if that period expires later than the period mentioned in paragraph (a) above.
(5) For the purposes of this section, the starting date for reckoning the period of limitation under subsection (4)(b) above is the earliest date on which the plaintiff or any person in whom the cause of action was vested before him first had both the knowledge required for bringing an action for damages in respect of the relevant damage and a right to bring such an action.
(6) In subsection (5) above "the knowledge required for bringing an action for damages in respect of the relevant damage" means knowledge both—
(a) of the material facts about the damage in respect of which damages are claimed; and
(b) of the other facts relevant to the current action mentioned in subsection (8) below.
(7) For the purposes of subsection (6)(a) above, the material facts about the damage are such facts about the damage as would lead a reasonable person who had suffered such damage to consider it sufficiently serious to justify his instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment.
(8) The other facts referred to in subsection (6)(b) above are—
(a) that the damage was attributable in whole or in part to the act or omission which is alleged to constitute negligence; and
(b) the identity of the defendant; and
(c) if it is alleged that the act or omission was that of a person other than the defendant, the identity of that person and the additional facts supporting the bringing of an action against the defendant.
(9) Knowledge that any acts or omissions did or did not, as a matter of law, involve negligence is irrelevant for the purposes of subsection (5) above.
(10) For the purposes of this section a person's knowledge includes knowledge which he might reasonably have been expected to acquire—
(a) from facts observable or ascertainable by him; or
(b) from facts ascertainable by him with the help of appropriate expert advice which it is reasonable for him to seek;
but a person shall not be taken by virtue of this subsection to have knowledge of a fact ascertainable only with the help of expert advice so long as he has taken all reasonable steps to obtain (and, where appropriate, to act on) that advice."
After these introductory remarks, I must now turn to the facts.
During the 1990s Mr Schumann and Ms Chinnock were married and they were keen to start a family. In early September 1997 they discovered that Ms Chinnock was pregnant. They were both elated. Ms Chinnock consulted her general practitioner and was referred to Liverpool Women's Hospital for antenatal care.
Ms Chinnock attended hospital on 20 th October 1997 for the purposes of an ultrasound scan. The scan revealed nuchal translucency thickness of 4.8 mm. That meant thickening at the back of the neck. The estimated gestational age of the foetus was then 11 weeks, 5 days. These findings indicated that there was a risk of trisomy. Statistical analysis indicated that this risk was approximately 1:13.
Mr Walkenshaw, a consultant obstetrician, reviewed the scan results and then met both parents to discuss the matter. He explained that the nuchal translucency was a soft marker; there was a risk of the baby being born with abnormalities. He added that this risk was "above the cut off point". In other words it was a risk which required some form of action. He did not specifically tell the parents that the risk was 1:13.
Ms Chinnock and Mr Schumann both worked with disabled children and they did not themselves wish to have a disabled child. According to Ms Chinnock's witness statement, they made this clear to Mr Walkenshaw and said that they wanted further tests. Mr Walkenshaw explained the options, namely a CVS test, which was available next day; alternatively amniocentesis or cordocentesis, both of which would be available at later dates. They chose CVS because it would produce the earliest results.
On the 21 st October, Ms Chinnock attended hospital and another consultant obstetrician, Mr Alfirevic, carried out the CVS. The Merseyside and Cheshire Genetics Laboratory carried out a direct analysis of the sample. The test results were normal. There was no sign of any genetic abnormality.
It would be normal practice for a culture of the CVS cells to be taken and analysed at a later date. This did not happen in the present case, because the culture failed. Although that might be a matter for criticism, it appears from the expert evidence very unlikely that any subsequent testing of a culture sample would have yielded a different result from the direct testing. So no harm flows from that particular omission.
The parents were reassured by the results of the CVS test. The pregnancy duly continued. Over the next four months Ms Chinnock had scans at regular intervals. The scans did not reveal any abnormalities, but the size of the foetus was a matter of some concern because of slow growth.
After carrying out a scan on 18 th February 1998 Dr Pilling, a consultant radiologist, sent a letter to Mr Farquharson, a consultant obstetrician, which is central to the present litigation. He wrote:
"Detailed scanning revealed no obvious fetal malformation.
Our estimation of the gestational age was 28+6 weeks.
…
The position of the placenta is High anterior
The fetal presentation is Cephalic
The amniotic fluid volume is Normal
Comments
The growth of this baby is falling off further. Normal Doppler UAPI. In spite of normal karyotype I strongly suspect there is some major abnormality with this baby but cannot define it. Follow up in 2 weeks by SAW or ZA and to be seen in clinic before that."
The initials "SAW" referred to Mr Walkenshaw. The initials "ZA" referred to Mr Alfirevic.
Dr Pilling's comments were not passed on to the parents. The action taken was to recall Ms Chinnock for a further scan. Ms Chinnock had the repeat scan on 24 th February 1998. After that scan she and her husband had a meeting with Mr Alfirevic, who made the following note of the consultation:
"Long discussion re scan reports.
Constitutionally small baby.
Both partners work with people with learning...
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