Rowbottom v Royal Masonic Hospital
| Jurisdiction | England & Wales |
| Judgment Date | 12 February 2002 |
| Neutral Citation | [2002] EWCA Civ 87 |
| Docket Number | Case No: QBENF/2001/1072/B3 |
| Court | Court of Appeal (Civil Division) |
| Date | 12 February 2002 |
[2002] EWCA Civ 87
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
Master Murray
Lord Justice Peter Gibson
Lord Justice Mantell and
Mr. Justice Wall
Case No: QBENF/2001/1072/B3
Mr A Jeffreys QC and Mr R Bendall (instructed by Messrs R Gordon Roberts Laurie & Co. of Llangefni for the Appellant)
Mr S Miller QC and Mr R Booth (instructed by Messrs Le Brasseur J Tickle of Kingsway, London for the Respondent)
Mantell LJ:
Neil Rowbottom claims damages for personal injuries against the Royal Masonic Hospital. He alleges that the hospital nursing staff were negligent in not administering antibiotics following a hip replacement operation which took place on 9 th February 1991 as a result of which failure the wound became infected leading to further major surgery and eventually to the amputation of Mr Rowbottom's left leg.
A writ was issued with Statement of Claim on 3 rd December 1993 by which both the hospital and the surgeon were made defendants. That action was discontinued against the hospital on 7 th November 1995 and against the surgeon on 14 th February 1997.
Between times fresh proceedings were commenced against the hospital alone by writ issued on 12 th July 1996. The allegations remained substantially the same.
By its defence the hospital denied liability and relied on the Limitation Act 1980.
It was agreed that the limitation point should be decided as a preliminary issue by Master Murray exercising the jurisdiction of a High Court Judge. On 17 th October 2000 the Master held that the action was statute barred. This is the appeal from that order.
The principal ground of appeal is that the Master was wrong to hold that 18 th May 1993 was the appellant's "date of knowledge" for the purposes of sections 11 and 14 of the Limitation Act 1980, that being the date when Counsel advised, rather than 22 nd July 1993 when a further report was received from the appellant's proposed expert, Mr Millner.
Although before the Master the defendant, now respondent, had contended for an earlier date than was found, there is no cross appeal and the contenders, if I may put it that way, are the two dates mentioned. Of course, if the Master was right the second writ was out of time and if not the appellant slips through by a matter of days. It is perhaps worth mentioning at this stage that no question of dis-applying the limitation period under section 33 of the Act could arise because of the earlier discontinued action (see Walkley v. Precision Forgings Ltd (1979) 1WLR 606; 1979 2 AER 548 HL).
The provisions of sections 11 and 14 of the Limitation Act 1980 are well known and need not be set out in full. It is sufficient to adopt the summary of Sir Thomas Bingham MR, as he then was, in Dobbie v. Medway Health Authority (1994) 1 WLR 235; 1994 5 MEDLR 160 at pp. 1240G and 164 respectively:
"Time starts to run against the claimant when he knows that the personal injury on which he founds his claim is capable of being attributed to something done or not done by the defendant whom he wishes to sue."
The same authority is good for the proposition that knowledge of fault or negligence is not needed to start time running simply knowledge that the injuries complained of were caused by the act or omission of the proposed defendant. In that case the plaintiff had her breast removed on the assumption that a lump was cancerous when further investigation would have revealed that it was benign. Sir Thomas Bingham said this:
"The personal injury on which the plaintiff seeks to found her claim is the removal of her breast and the psychological and physical harm which followed. She knew of this injury within hours, days or months of the operation and she at all times reasonably considered it to be significant. She knew from the beginning that this personal injury was capable of being attributed to, or more bluntly was the clear and direct result of, an act of omission of the Health Authority. What she did not appreciate until later was that the Health Authority's act or omission was (arguably) negligent or blameworthy. But her want of that knowledge did not stop time beginning to run."
So the question here was; when did the appellant know that his dreadful injuries were capable of being attributed to something done or not done by the hospital staff?
In seeking an answer to that question the Master considered, and I agree, that three documents were of particular importance. The first was an opinion of Mr Millner, orthopaedic surgeon, provided in February 1993; the second was counsel's opinion on the merits dated 12 th May 1993 and the third was the addendum from Mr Millner already referred to dated 22 nd July 1993.
Mr Millner had been asked a number of questions, some directed at the operative procedures; some directed at the adequacy of the drain inserted after the operation; and some directed to whether antibiotics were given and if not whether they should have been. As to this last matter (the only one of significance on the appeal) Mr Millner stated:
"I do not know whether or not antibiotics were given, but I can certainly not see anything in the record that would indicate that they were. Infections do certainly occur in people who are covered by a course of prophylactic antibiotics, but nevertheless it must be accepted they do reduce the risk of this occurring."
Then later:
"In summary, therefore, I would say that the only points which would have lessened the likelihood of infection, although certainly not entirely eliminated it, was the provision of adequate suction drainage and adequate prophylactic antibiotics. Attempts at the former were not successful because of the points raised above, but whether this could be considered to be negligent or not is a fairly moot point and I think it would be difficult to make such an accusation stick. I cannot see that he was given antibiotic cover and, if he was not, then my view is that it was negligent not to have given antibiotic cover unless there was a very good reason for not doing so. I would however stress that even if antibiotic cover had been given and a drainage had been satisfactory, there is no certainty that the infection would not have occurred."
Pausing there, it would seem that at that stage the "omission" upon which the appellant was later to rely had not been established but there was certainly a strong suspicion that antibiotics had not been administered.
The point was picked up by Counsel in his opinion of 12 th May 1993. In that advice he stated:
"I have come to the conclusion it would appear to be possible that my lay client has a cause of action, but before making any final assessment I would ask that Mr Millner be invited to clarify certain points to which I refer…below."
He went on to seek Mr Millner's opinion on the following:
"(a) Is it reasonable to assume no antibiotics were given if there is no record of any having been given?
(b) If antibiotics had been given is it likely that there would have been no infection or that at least any infection would not have become so deep rooted so as to result in amputation becoming necessary?
(c) In short, if antibiotics had been given, is it likely or merely possible that my client's leg would have been saved?"
At that stage Counsel was advising as to whether the limitation on his Legal Aid Certificate should be lifted to allow for commencement of proceedings with the benefit of state funding.
Mr Millner's response coming on 22 nd July was to say that in his view it was reasonable to assume that no antibiotics had been given in the absence of any record either in the doctor's notes, nursing records or other documents and that had antibiotics been given prophylactically the risk of infection becoming established would have been reduced by 75%. Overall therefore it was his view that if antibiotics had been given it was likely that the leg would have been saved.
Having reviewed those pieces of evidence the Master found "that he did have the requisite knowledge on or shortly after 18 th May 1993 because the evidence conveyed, together with Mr Gray's opinion, the fact that there was "a case worth pursuing against the Royal Masonic Hospital for failure to administer antibiotics." On the way to that conclusion the Master had observed that counsel's doubts really related to causation rather than liability.
In my view that is not the complete picture. Certainly there was a major question as to whether the giving of antibiotics would have made a difference but the equally important and anterior question remained; had antibiotics been administered or not? That was the omission to which the injuries had to be related.
On any view this is a borderline case. Mr Millner's original report certainly did not assert or even assume that antibiotics had not been given. There was also the evidence from the appellant that it was his belief that he had received antibiotics after the operation but did not know whether such drugs as were administered had been in accordance with the prescription. Against that it may be said that the absence of any mention of antibiotics in the record is sufficient to support an inference that none had been given.
After a deal of hesitation brought about not least because I am differing from this most experienced Master, sadly now deceased, I have come to the conclusion that the appellant has justified his assertion that he first had knowledge of the respondent's omission on or after 22 nd July...
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