Whiston v London Strategic Health Authority
| Jurisdiction | England & Wales |
| Judge | Lord Justice Dyson,Lord Justice Longmore,Lady Justice Smith |
| Judgment Date | 05 March 2010 |
| Neutral Citation | [2009] EWCA Civ 1226,[2010] EWCA Civ 195 |
| Docket Number | Case No: B3/2009/1107 |
| Court | Court of Appeal (Civil Division) |
| Date | 05 March 2010 |
[2010] EWCA Civ 195
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
Mr Justice Eady
Before: Lord Justice Dyson
Lord Justice Longmore
and
Lady Justice Smith
Case No: B3/2009/1107
HQ.06X.03108
Michael de Navarro Q.C. (instructed by Barlow Lyde & Gilbert Llp) for the Appellant
Phillip HAVERS Q.C. (instructed by Parlett Kent) for the Respondent
Hearing dates: 18 February 2010
Lord Justice Dyson:
Introduction
The claimant was born on 6 September 1974 in Queen Charlotte's Maternity Hospital, Hammersmith. He suffers from cerebral palsy as a result of brain damage caused at the time of his birth. He started proceedings against the defendant authority on 17 October 2006 alleging that his injury was caused by the negligence of the defendant, its servants or agents.
The particulars of negligence alleged at para 14 of the particulars of claim are that the defendant was negligent in its care and treatment of the claimant before and during delivery in:
a) failing to respond adequately or competently to the circumstances which obtained when Dr Breeson attended at 21.10 hours. He was confronted with an obstetric emergency arising from:
i) delay in labour; labour had progressed well until 13.15 hours but thereafter slowed significantly with only one cm further dilation between 13.15 and the next vaginal examination at 16.30 hours and only one further cm dilation between 16.30 and next vaginal examination at 20.05 hours.
ii) Fetal distress, in particular Type ll (late) decelerations which were indicative of fetal hypoxia.
iii) A persistent OP position.
iv) A large baby.
Dr Breeson's proper response should have been to summon the Registrar urgently and to advise the midwives to prepare for an assisted vaginal delivery by the Registrar in which event the claimant would (and should) have been delivered by 21.20 hours at the latest.
b) Instead, attempting himself (a relatively inexperienced SHO) to deliver the claimant by Simpsons forceps and persisting in the attempt to do so for at least half an hour resulting in a failed forceps.
c) In the circumstances failing to deliver the claimant by 21.20 hours at the latest.”
A defence was served on 10 June 2008. Negligence was denied.
Unsurprisingly, it was also alleged that the claim was statute-barred by the Limitation Act 1980 (“the 1980 Act”). It was pleaded that the primary limitation period of 3 years prescribed by section 11 of the 1980 Act expired on 6 September 1995 (3 years after the claimant reached the age of 18 years). The claimant was put to proof that he did not acquire actual knowledge of the relevant facts within the meaning of section 14(1) of the 1980 Act before 17 October 2003. Alternatively, it was contended that the claimant had constructive knowledge within the meaning of section 14(3) on or before 6 September 1992 (the date of his 18 th birthday). Finally, it was contended that the court should not exercise its discretion under section 33 to disapply the provisions of section 11.
The limitation issues were tried by Eady J as preliminary issues. By a judgment given on 22 April 2009, he decided that the claimant did not have actual or constructive knowledge until November 2005. That was sufficient to decide that the claim was not statute-barred. But for the sake of completeness, he considered the section 33 issue and decided it in favour of the defendant.
The defendant appeals against the judge's decisions on the actual and constructive knowledge issues. The claimant appeals against his decision on the section 33 issue.
The facts
Mrs Whiston, the claimant's mother, said that her pregnancy was uneventful and her labour, which was induced, progressed satisfactorily until 21.00 hrs on 6 September 1974 when a senior house officer, Dr Breeson, attended her. He was called by the midwives because they had a concern about the fetal heart. Dr Breeson recorded in the hospital notes “Type II dips” (Type II decelerations are indicative of fetal hypoxia) and carried out a further vaginal examination. The next entry in the notes is timed at 22.00 hrs and states “Kiellands forceps delivery of live boy”. Mrs Whiston had been a nurse for much of her working life. She had also been trained as a midwife. She said that Dr Breeson, who was a very junior doctor at the time, spent half an hour or more trying to deliver the claimant with Simpsons forceps. She said that she was aware of the timings because Dr Breeson took so long and she knew at the time that the fetus would be in distress. She knew that the delivery was taking far too long. According to her account, when Dr Breeson realised that he could not deliver the baby, one of the midwives summoned the registrar, Dr Sims. He arrived and delivered the claimant within 5 minutes using Kiellands forceps.
Mrs Whiston said that she knew that the claimant was brain damaged from the outset. When he was about 8 months old, she was told that he had cerebral palsy, although she said that she already knew this. When the claimant was about one year of age, she discussed with her husband several times whether they should take her concerns about the management of the delivery any further, either by making a formal complaint or consulting a solicitor. He said that he did not want to take any action because he felt that to be involved in a legal claim would be very distressing and time consuming and Julius was progressing well. She said that, as he was doing well, they decided “to get on with our lives and make the best of what we had.”
The claimant's development was abnormally slow. He walked late; he learnt to speak late; and his fine motor skills were poor. He developed urinary incontinence at the age of about 12 and he suffered epileptic seizures from time to time. Initially, he attended special schools. But he was highly intelligent. He entered Eton College as a King's Scholar in 1988 and boarded there until 1993. He did well academically. On leaving Eton, he went to Pembroke College, Cambridge where he studied mathematics and obtained a 2.1 class degree. He then went on to obtain a PhD in mathematics. On leaving Cambridge in June 2001, he returned to live with his parents. He did not find employment until 2003 when he started work as a quantitative analyst with the Nationwide Building Society in Northampton.
Mrs Whiston described the claimant's health during his years at school and university as “stable”. But his balance was not good, although he was able to walk reasonable distances unaided. His speech was slightly slurred and slow. He was, however, able to drive and lead an independent life.
Towards the end of his fourth year at university, Mrs Whiston noticed a slight deterioration in his mobility. From about the beginning of 2005 she said that there was a dramatic change in his condition. She described the impact of the change on his life as “profound”. By now, the claimant was complaining of feeling very tired so that he had to take time off work. During 2005, his mobility got worse. He had started using a wheelchair for any long distances in 2002. From the beginning of 2005, he started to use the wheelchair constantly. His speech became worse in about 2005 and he was having difficulty swallowing.
One day in late October or early November 2005, Mrs Whiston was shown a newspaper article by a work colleague about a man who suffered from cerebral palsy and had brought a claim at the age of 40. At para 39 of her statement, she said:
“Given my concern about my son, I decided to speak to him about what happened and help him to obtain legal advice. I cannot remember the precise words but I told Julius that I believed that the forceps delivery had not been handled properly by a junior doctor who tried to deliver him with the forceps for a very long time and suggested that maybe he should investigate a potential clinical negligence claim. Once I spoke to Julius and he realised what had happened, he agreed to go ahead and has been instrumental in progressing the claim.”
Both the claimant and his parents gave evidence at the hearing. Mr Whiston said in his witness statement that as a family, “we are very pragmatic accepting what is put in front of us and adapting to the circumstances. The objective of my wife and I throughout Julius' life has been to keep our family situation as normal as possible, not to emphasise our son's disability”. He also said at para 6:
“From time to time, Julius asked my wife and I what was the cause of his problems but this was not often as Julius did not see himself as disabled. We told him that his disability was due to the forceps delivery but at no time did either my wife of I discuss with him that we had any concerns about the obstetrician's expertise.”
The claimant's evidence as to his achievements, his disability and the deterioration in his condition was to the same effect as that of Mrs Whiston. As regards his understanding of his condition, he said in his witness statement:
“25. Prior to November 2005, I knew I was born in Hammersmith, delivered by forceps and that my CP was caused by lack of oxygen at birth. That was the full extent of my knowledge.
26. These three facts have been known to me since childhood but I have never investigated them. For example, I never knew what forceps actually were, only taking the trouble of looking it up after I consulted solicitors. I have been...
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