London Strategic Health Authority v Whiston

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:

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:

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.

Fetal distress, in particular Type ll (late) decelerations which were indicative of fetal hypoxia.

A persistent OP position.

A large baby.

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.

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.

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:

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:

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:

He also said that, prior to Mrs Whiston showing him the newspaper article in about November 2005, he could not recall having any discussion with his parents about how his cerebral palsy had arisen.

Solicitors were not consulted until November 2005. But for some time, claims for mobility and disability living allowances had been made by or on behalf of the claimant. Documents were disclosed after the completion of the hearing (but before judgment was given) which showed that successful applications were made for these allowances in 1986, 1988, 1990, 1991 and 1995. These applications contained descriptions by Mrs Whiston of the claimant’s disability and assessments by independent doctors of his disability based on their examination and observation of him. Both the claimant and Mrs Whiston were cross-examined on these documents. The claimant said that his mother’s descriptions of his disability were exaggerated. An example of what Mrs Whiston wrote on behalf of the claimant is to be found in the application for disability living allowance dated 20 May 1995. She wrote:

Section 11(4) of the 1980 Act provides that (with immaterial exceptions) the relevant limitation period for actions in respect of personal injuries is 3 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 so far as material provides:

Section 33 provides so far as material:

In acting under this section the court shall have regard to all the circumstances of the case and in particular to –

The judge made an important finding of fact that Mrs Whiston did not at any time before November 2005 inform the claimant of her concerns about the standard of the medical treatment that she had received at the time of his birth. Mr de Navarro QC submits that the judge made this finding without taking any or any sufficient account of the statements by Mrs Whiston and the assessments of the independent doctors contained in the mobility and living allowance documents.

The judge dealt with the documents in the following way:

Mr de Navarro acknowledges that the judge held that the cross-examination of Mrs Whiston about her statements in the allowances documentation had damaged her credibility. But the judge also concluded that these documents did not undermine the claimant’s credibility. It is this conclusion that Mr de Navarro seeks to challenge by his first ground of appeal. He submits that in reaching this conclusion the judge overlooked the examinations and observations by the independent doctors which made it plain that the claimant’s performance as observed by them was significantly worse than he was prepared to admit. Mr de Navarro says that the only fair conclusion from the examination and observation of the doctors is that the claimant was exaggerating his disability and was prepared to lie in order to obtain benefit, or that his insistence now that he was only mildly affected by his disability at that time was itself untrue. Either way, the effect should have been to undermine his credibility as well as that of his mother. Mr de Navarro says that a finding that the claimant did not have actual knowledge that his disability was attributable to an act or omission of the defendant depended entirely on his evidence and that of his parents. He submits, therefore, that a proper assessment of the contents of the applications for allowances should have led the judge to reject the claimant’s evidence that he had no actual knowledge.

I cannot accept these submissions. There is no reason to suppose that the judge did not take into account all the information contained in the application forms. As recorded at para 32 of the judgment, Mr de Navarro was relying on all the information contained in the application forms and saying that “the court should regard those documents as giving a truer picture”. The judge must have understood that Mr de Navarro was not only relying on the descriptions written by Mrs Whiston in the documents, but also the obviously significant assessments and statements by the independent doctors of what they observed. I do not accept that the judge overlooked these assessments and observations and focused only on the descriptions given by Mrs Whiston.

The claimant was cross-examined at some length both about the descriptions by Mrs Whiston and the assessments and observations of the doctors. He said that he did not entirely agree with his mother’s descriptions or the doctors’ assessments and observations. The judge found the claimant to be “frank throughout his evidence”. He also found that the claimant regarded himself as only mildly affected by the disability and did his best to ignore it and concentrate on other matters. This was the judge’s response to the suggestion that the claimant had deliberately played down his disability in order to meet the limitation defence. In my judgment, the assessments and observations of the independent doctors did not preclude this conclusion. I would add that, even if these assessments and observations should have caused the judge to have doubts about the claimant’s credibility, I do not see why that would necessarily have led him to reject the claimant’s clear evidence (supported by his mother) that he was not told about his mother’s concerns about the standard of medical treatment she received at the time of his birth. The judge saw and heard the claimant give evidence. He clearly regarded him as an honest witness. In my judgment, he was entitled to do so.

I therefore reject the first ground of appeal.

At para 16 of his judgment, the judge said:

Mr de Navarro draws attention to the fact that forceps delivery is one of the acts of the defendant’s medical staff which is alleged in the pleaded particulars of negligence. He submits, therefore, that on that basis the claimant had actual knowledge that his disability was attributable to an act of the defendant’s medical staff which is “alleged to constitute negligence” (see section 14(1)(b)). This was an act of which, on his own admission, the claimant was aware long before 17 October 2003. Accordingly, Mr de Navarro submits, the claimant had actual knowledge outside the limitation period. He also submits that, although the judge purported not to do so, he in fact conflated proof of attributability to an act or omission with proof of negligence.

I cannot accept these submissions. Section 14(1)(b) of the 1980 Act refers to knowledge of the fact that the injury was attributable in whole or in part to the act or omission which is alleged to constitute negligence. In order to see what act or omission is alleged to constitute negligence, it is necessary to go to para 14 of the particulars of claim which I have set out at para 2 above. It is clear that delivery by forceps alone is not an act which is alleged to constitute negligence. Nor could it sensibly be so, not least because Dr Sims achieved a delivery without apparent difficulty using Kiellands forceps. It is no part of the claimant’s case to allege that the use of forceps without more was negligent. The alleged negligence lay not in using forceps per se, but in using the wrong type of forceps (Simpsons rather than Kiellands) and, above all, persisting in the attempt to deliver by forceps for at least half an hour. There is no evidence that the claimant had knowledge of either of these things before November 2005.

Mr de Navarro seeks to overcome these difficulties by submitting that, for the purposes of section 14(1)(b), what is required is “knowledge of the essence of the act or omission to which the injury is attributable” (per Sir Thomas Bingham MR in Dobbie v Medway Health Authority [1994] 1 WLR 1234, 1241C) and that it is not necessary for the claimant to know all the details of the defendant’s acts or omissions on which he relies as constituting negligence (see per Slade LJ in Wilkinson v Ancliff (B.L.T.) Ltd [1986] 1 WLR 1352, 1362H and 1365A).

I readily accept these propositions. In my judgment, however, they do not avail the defendant in this case. The fact that the claimant’s delivery was by forceps does not begin to capture the essence of the acts and omissions alleged at para 14 of the particulars of claim. The essence of the claimant’s case is that his injury was attributable to (i) Dr Breeson’s persisting in the attempt to deliver the claimant by forceps for at least half an hour; (ii) his use of Simpsons forceps; and (iii) his delay in seeking assistance from a more experienced obstetrician. None of this was encapsulated in the claimant’s mere knowledge that he had been delivered by forceps. These three elements of the claimant’s case were not mere details of his case. They were his case stripped to its essentials.

It follows that I reject ground 2. The judge was right to determine the actual knowledge issue in favour of the claimant.

The judge said:

It is common ground that the judge was right to adopt the formulation suggested by Mr Havers QC with the modification introduced by the judge. This was consistent with what the judge had earlier said at para 10 of his judgment:

At para 36, the judge recorded the matters relied on by Mr Havers in support of his submission that the claimant did not have constructive knowledge within the meaning of section 14(3) of the 1980 Act of the fact that his injury was attributable to the acts and omissions alleged to constitute negligence. These were:

With the exception of the last three sentences of (iv), Mr Havers relies on these same factors in seeking to uphold the decision of the judge in this court.

At para 37, the judge recorded the submission of Mr Havers that, in the light of the factors recorded at para 36, “the notional ‘reasonable person’, finding himself in the same circumstances as the claimant, would not have had any reason to go behind what his mother had always told him or to become curious as to possible acts or omissions by medical staff”.

I should set out the remaining part of the judgment on the constructive knowledge issue:

In these circumstances, whatever may be the law as to burden of proof, I conclude on a balance of probabilities that the Claimant cannot be fixed with constructive knowledge either. I do not consider that the additional documents, explored on 22 April, are such as to make any difference to the resolution of this issue. Even if, viewed objectively, his condition should be regarded as more serious than he was prepared to accept, that does not affect the ultimate answer when I apply the tests I have discussed at paragraphs [9]–[10] above.”

Mr de Navarro submits that the judge fell into error when at para 41 he placed considerable weight on the claimant’s character and his perception of his disabilities. He says that in doing so, the judge substituted a subjective test for the objective test that he should have applied. He submits that, if the judge had applied the objective test, he would have found that a reasonable person in the circumstances of the claimant would have asked his mother long before his 18^th birthday whether anything went wrong at his delivery and, given the knowledge that Mrs Whiston claims to have had about what did go wrong, he would have acquired knowledge that his disabilities were attributable to the acts and omissions of Dr Breeson of which he complains in these proceedings.

Mr Havers emphasises the fact that the judge identified the correct legal test for constructive knowledge at paras 10 and 36 of his judgment and purported to apply that test: see the last sentence of para 41. Moreover, there is nothing in para 41 which suggests that the judge was applying a subjective test.

I agree. But there are two difficulties with the judge’s treatment of the constructive knowledge issue. First, his answers at paras 39 and 40 to the submissions made by Mr de Navarro are not satisfactory. At para 39, the judge repeated the finding he had already made at para 22 that Mrs Whiston never told the claimant of her concerns about the delivery. Although highly relevant to the issue of actual knowledge, this was irrelevant to the issue of constructive knowledge. Indeed, it is difficult to see why the judge returned to this finding in his discussion of the constructive knowledge question at all. Secondly, in my judgment at para 40 the judge did enter the domain of subjectivity. Whether the claimant read newspaper reports or made assumptions is irrelevant to whether a reasonable person in the circumstances of the claimant would have asked his mother about his delivery.

I therefore agree with Mr de Navarro that the judge’s reasoning strongly suggests that, in reaching his conclusion, to some extent at least he applied a subjective test, although he unquestionably purported to apply the correct objective test. His conclusion is to be found in para 41. So far as it goes, it is unobjectionable. But in that paragraph, the judge does no more than assert his conclusion. He should have provided reasons to show why, adopting an objective approach, he concluded that the claimant did not have constructive knowledge. Unfortunately, he failed to do so. In the end, Mr Havers was compelled to agree with this.

It follows that we must decide the constructive knowledge issue for ourselves. Mr Havers is content to rely on the factors summarised by the judge at para 36 of his judgment with the modification to which I have referred. He places particular reliance on the fact that the claimant was born with his disabilities and distinguishes 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:

Mr de Navarro relies on the fact that the claimant knew that he had significant disabilities and that they were connected with the circumstances of his birth. He knew that his cerebral palsy was caused by lack of oxygen at his birth and that he had been delivered by forceps. Mr de Navarro submits that, with that knowledge, by the time he was in his late teens (or possibly his early twenties), having regard to the severity of the claimant’s disabilities, a reasonable person in his circumstances would have been sufficiently curious about the cause of his disabilities at least to ask his mother about it. If he had asked his mother, there is no reason to suppose that she would not have told him the account of what happened which has formed the basis of these proceedings.

Mr de Navarro relies on the House of Lords decision in Adams v Bracknell Forest Borough Council [2004] UKHL 29, [2005] 1 AC 76 and in particular on para 47 of the speech of Lord Hoffmann. But before I come to para 47, I need to put it in context by referring to other parts of his speech. In Adams, the claimant issued proceedings against the Council alleging negligence in failing properly to assess the educational difficulties he had experienced at school which could have revealed that he suffered from dyslexia. The Council relied inter alia on section 14(3) of the 1980 Act.

Lord Hoffmann discussed the test for constructive knowledge at paras 33 to 47 of his speech. He referred to the explanation of the constructive knowledge test given by Lord Denning MR in Newton v Cammell Laird & Co (Shipbuilders and Engineers) Ltd [1969] 1 WLR 415, 419: “You do not ask: At what date would a reasonable person have taken advice? You ask: At what date was it reasonable for this man to take it”. In Smith v Central Asbestos Co Ltd [1973] AC 518, 530 Lord Reid said: “I agree with the view expressed in the Court of Appeal that this test is subjective”. At para 39, Lord Hoffmann referred to the Law Reform Committee’s 20^th Report (Interim Report on Limitation of Actions in Personal Injury Claims) (1974) (Cmnd 5630) which agreed that the definition of constructive knowledge should allow the court to consider all the circumstances of the case. At para 41, Lord Hoffmann said that the Limitation Act 1963 was repealed and the law recast substantially in accordance with the recommendations of the Law Reform Committee.

He then referred to the decision of this court in Forbes v Wandsworth Health Authority [1997] QB 402. The question in that case was whether the plaintiff, who had a history of circulatory problems in his legs, ought to have sought advice as to why an attempted by-pass operation had resulted in one leg having to be amputated. When he did inquire some ten years after the event, he was told that it was because the operation had been unsuccessful. The surgeon had made a second unsuccessful attempt to operate the following day and the plaintiff was advised that he would have had a better chance if he had tried again earlier.

The plaintiff trusted the surgeon and thought that he had simply suffered a misfortune. Stuart-Smith LJ was prepared to accept that one might not be able to say that such an attitude was necessarily unreasonable, but thought that section 14(3) would fail in its purpose unless it was assumed that a reasonable victim of an injury such as the loss of a leg will display some curiosity about why it should have happened. Otherwise, the limitation period could be extended indefinitely. This would be unjust to defendants who, contrary to the policy of the Act, would be vexed with stale claims. On the other hand, tightening up the requirements of constructive knowledge need not involve injustice to a plaintiff because the discretion under section 33 gave the court the power to allow him to sue when it was equitable to do so. Stuart-Smith LJ said this at page 413E:

The observations of Evans LJ at page 422F-H were to similar effect. At para 45, Lord Hoffmann said that he found this reasoning persuasive. The Court of Appeal in Forbes had been right to say that the introduction of the discretion under section 33 had “altered the balance”. It was, therefore, “possible to interpret section 14(3) with a greater regard to the potential injustice to defendants if the limitation period should be indefinitely extended”. Accordingly, Lord Hoffmann said at para 46 that Lord Reid’s dictum in Smith v Central Asbestos was not a correct interpretation of section 14(3) and the same was true of a dictum of Purchas LJ to similar effect in Nash v Eli Lilly & Co [1993] 1 WLR 782, 799.

I can now set out para 47 on which Mr de Navarro relies:

Lord Hoffmann then went on to consider constructive knowledge on the facts of the case under appeal. At para 51, he said: “In my opinion, there is no reason why the normal expectation that a person suffering from a significant injury will be curious about its origins should not also apply to dyslexics”.

Before I discuss paragraph 47, I need to refer to the speeches of the other members of the House. Lord Phillips of Worth Matravers said:

Lord Scott of Foscote said at para 71:

Lord Walker of Gestingthorpe said at para 76 that he agreed with Lord Hoffmann that it was no longer possible to state roundly, as Lord Reid had done, that the test is subjective. But the test was not entirely objective either. At para 78, he said that he would be cautious about “any simple formula put forward to cover every case which might occur”. Baroness Hale of Richmond adopted a somewhat different approach and said at para 91 that she would not want to rule out that the personal characteristics of a claimant might be relevant if they affect his or her ability to acquire information.

In my judgment, the ratio of Adams is that section 14(3) requires an objective test to be applied. It was accurately summarised by Eady J at paras 10 and 36 of his judgment. The importance of Adams is that it settled the difference between the objective (or mainly objective) test applied in Forbes and the subjective test enunciated in the earlier cases to which I have referred in favour of the former. That was the test to which Lord Phillips was referring. Lord Scott said in terms that, like Lord Hoffmann, he preferred the reasoning in Forbes to that in Nash and said that the approach to constructive knowledge should be “mainly objective”. Lord Walker agreed that the subjective test could no longer be supported and that the courts had moved to a “more objective approach”.

None of the other members of the House explicitly referred to or endorsed what Lord Hoffmann said at para 47. In my judgment, it does not form part of the ratio of Adams. It may be that Lord Walker was referring to para 47 of Lord Hoffmann’s speech when he said at para 78 that he would be cautious about any “simple formula put forward to cover every case which might occur”. The apparently absolute language of para 47 does appear to lay down a formula to cover every case. But I doubt whether Lord Hoffmann intended to be so prescriptive. As we have seen, at para 51 he said that there was no reason “why the normal expectation that a person suffering from a significant injury will be curious about its origins should not also apply to dyslexics” (my emphasis). It may be that the use of the word “assume” in paragraph 47 indicates that what follows is not an inflexible rule, but a normal expectation.

Mr de Navarro submits that para 47 is to be understood as saying that, in all cases where a person is aware that he has suffered an injury serious enough to be something about which he would consult a solicitor if he knew that he had a claim, section 14(3) requires one to assume that he will be sufficiently curious about the causes of his injury to ask questions about it. The effect of section 14(3), therefore, is that a claimant has constructive knowledge of the facts which he would have discovered if he had asked those questions. Mr de Navarro submits that, if section 14(3) is applied in this way to the facts of the present case, by the time he reached the age of 21 at the latest, the claimant had constructive knowledge of the facts which he would have learnt if he had asked his mother about the circumstances of his delivery.

If para 47 is to be understood as Mr de Navarro contends, then if a claimant knows that he has a significant injury, he is fixed in all cases with knowledge of such facts as he would have ascertained if he had made appropriate inquiries. If knowledge that he has a significant injury is established, it necessarily follows that he should reasonably have made such inquiries and he is fixed with knowledge of all facts which he would have ascertained as a result of those inquiries.

But this is not what the statute says. Section 14(3) refers to knowledge which a claimant “might reasonably be expected to acquire” from facts observable or ascertainable by him or by him with appropriate expert advice which it is reasonable for him to seek. It does not say that, if a claimant has knowledge that the injury in question is significant, he is fixed with knowledge of the facts that he would ascertain if he made inquiries about the cause of his injury. The subsection does not provide that actual or constructive knowledge that the injury is significant is determinative of the constructive knowledge issue. If that had been intended, section 14(3) would have been drafted differently. Instead, Parliament has decided that the issue of constructive knowledge should be determined by reference to the knowledge which a person might reasonably be expected to acquire. In my judgment, what is reasonably expected of a claimant must depend on all the circumstances of the case. In enacting the predecessor of section 14(3), Parliament must have intended to adopt the recommendation of the Law Reform Committee (para 59) that constructive knowledge should allow the court to consider “all the circumstances of the case”, a recommendation which Lord Hoffmann himself agreed had been adopted in the Limitation Act 1975.

Thus the court should consider what is reasonably to have been expected of the claimant in all the circumstances of the case. That is not to say that the court should overlook the fact that it must apply an objective test. I also accept that, in deciding whether in all the circumstances of the case, the claimant should reasonably have made appropriate inquiries, the court should bear in mind that the House of Lords has “tightened up” the requirements of constructive knowledge in the light of the existence of the discretion in section 33 and the policy of the 1980 Act to avoid the injustice to defendants of vexing them with stale claims. I accept that the decision in Adams requires the court to expect a heightened degree of curiosity of the reasonable claimant than it would do absent section 33.

In my judgment, a relevant circumstance in a case such as the present is that the claimant has been suffering from the injury since he was born. I agree with the point made by Cox J in Khaiwule that, when assessing the extent to which someone is reasonably to be expected to be curious about the cause of his disability, a distinction should be drawn between someone who has lived with a disability and its effects all his life and someone who suffers an injury following an adverse incident which occurs in adulthood. An example of the latter is Forbes.

Having considered the general approach, I can now express my conclusion on its application to the present case quite shortly. By the time the claimant was in his early twenties, he knew that his disability was serious and getting worse. His balance was deteriorating. His speech difficulties were increasing. His gait began to widen, he found it increasingly difficult to walk and he could no longer stand without support. He had been having epileptic fits since he was a child. He had been suffering from urinary incontinence since he was about 12. He knew that claims for disability and living allowances had been made and allowed (according to the documents that we have seen) since he was about 12. I am in no doubt that he knew that his injury was “significant”. Indeed, that was conceded by him at the beginning of the trial. He also knew that his cerebral palsy was caused by lack of oxygen at birth and that he had been delivered by forceps.

The question for the court is whether, on those facts and applying the “tightened up” approach as to degree of curiosity that is expected of a reasonable claimant, a reasonable claimant in the circumstances of this claimant would have made inquiries of his mother about his delivery. It is clear that, if he had made those inquiries, she would have told him what she eventually told him in 2005 and he would have acquired knowledge of the fact that his injury was attributable to the acts and omissions which he now alleges constituted negligence on the part of Dr Breeson for which the defendant is vicariously liable.

I take into account the fact that a person who suffers from a disability at birth is more likely to be accepting of his disability (because he has never known anything different) than a person who suffers an injury during adult life. But where the disability becomes more serious as he becomes an adult and he knows that the disability is in some way related to the circumstances of his delivery (rather than, say, the result of some genetic disorder), it seems to me that there comes a time when a reasonable person would want to know about the circumstances of his birth which have given rise to the problem. There comes a time when the reasonable person in the circumstances of the claimant would ask his mother, particularly since she is a nurse and a trained midwife. As a reasonable person, the claimant would have known that she would be able to answer his questions. In these circumstances, and bearing in mind the heightened approach to section 14(3) that the court is enjoined to adopt, I have concluded that the claimant had constructive knowledge of the facts which he discovered from his mother in 2005 no later than when he was in his early 20s, say in about 1998.

I would, therefore, uphold the third ground of appeal. It follows that I would allow the appeal and, subject to the cross-appeal on the section 33 issue, hold that the claim is statute-barred.

The judge dealt with the section 33 issue “for the sake of completeness”. This was inevitably an artificial exercise in view of his finding that the claimant did not have knowledge at any time before 2005. But if he was to embark on the section 33 issue at all, he had to fix a hypothetical date of knowledge in order to determine “the length of, and the reasons for, the delay on the part of the plaintiff”: see section 33 (3)(a). He took “about 1992” as his hypothetical date of knowledge. He probably had no alternative but to choose this date, although the artificiality of doing so raises real doubts as to the utility of embarking on the exercise at all. The judge is not to be criticised for doing so, since it seems that this was the wish of both parties. Indeed, at para 43(a) he acknowledged that it was “somewhat futile to fix a notional date” for the purposes of the hypothetical exercise that he was undertaking.

At para 43 of his judgment, the judge identified the points relied on by Mr de Navarro in support of his submission that the judge should not exercise his discretion to disapply the 1980 Act. These were: (i) the delay was prolonged; (ii) the defendant was therefore deprived of the opportunity to conduct research into the background; (iii) the claimant’s parents had deliberately decided not to bring proceedings (although as the judge pointed out, this point glossed over the distinction between the state of the claimant’s knowledge and that of his parents); (iv) Dr Breeson and Mr Sims did not have the opportunity to consider the allegations at a time when their memories of the events in question were fresh or at least within their grasp; and (v) there was evidence that the CTG record would have been destroyed towards the end of 1999 or shortly thereafter. The CTG record might have completely exonerated Dr Breeson and therefore the defendant.

Mr de Navarro, therefore, submitted that, by reason of the delay, a fair trial would no longer be possible. The absence of the CTG record was particularly important since the information it contained could have been decisive on the central question of whether, as Mrs Whiston alleged but Dr Breeson denied, he had attempted a forceps delivery for at least half an hour.

The judge rejected the submission that a fair trial was not possible. In doing so, he relied on the evidence of Dr Myerscough which is contained in a report dated 27 February 2009. It was his evidence that a fair trial was still possible in the light of the surviving documents. He said at para 68 of his report that the CTG is “only a small part of the paper observation”. He continued:

At para 47 of his judgment, the judge said:

He then continued:

“Nevertheless, having regard to the overall balance of justice in the case, the length of the delay and the explanation for it would be major factors to put in the scales. Inevitably, because of my primary findings on lack of knowledge, I am proceeding on a hypothetical basis. But, if I work on the assumption that the Claimant did have knowledge from 1992 onwards, the only explanation available would appear to be that the family decided not to sue and to make "the best of a bad job".

I need to take into account all the circumstances of the case in deciding whether it would now be "equitable" to disapply the limitation period. In particular, I am required to have regard to the factors identified in s.33(3). On the hypothesis that this Claimant had the relevant knowledge from about 1992, he could hardly be said to have "acted promptly and reasonably". The delay was very significant. Nor did he until many years later take steps "to obtain medical, legal or other expert advice". Furthermore, there is a degree to which the evidence is likely to be less cogent, although this should not be overstated. What I have in mind particularly is the absence of CTG. It does not render a fair outcome impossible, but it does present some difficulties. Overall, it does seem to me that it would be (as in Dobbie) "unfair to require the health authority to face this claim arising out of events which took place so long ago".

Mr Havers submits that the judge’s exercise of discretion is flawed for three principal reasons. First, having found correctly that a fair trial was possible, the judge could not reasonably have found that it was unfair or inequitable to require the defendant to face a claim arising out of events which took place so long ago. Secondly, in reaching the conclusion that it was unfair to require the defendant to face such a stale claim, he left out of account the prejudice that would be suffered by the claimant who (it was conceded by Mr de Navarro) had no alternative remedy in respect of his injury. Thirdly, the judge was wrong to work on the assumption that the only explanation for the delay after the assumed date of 1992 was the family’s decision not to sue and to make the best of a bad job.

I would not accept the first criticism. The judge said at para 47 that he did not believe that the lack of CTG rendered a fair trial impossible. He put it the same way at para 49 when he said that the absence of CTG did not render “a fair outcome impossible”. But he added that the absence of CTG did present some difficulties. Dr Myerscough considered that the trial judge would be able to adjudicate on the issues in the case despite the absence of the CTG. That was clearly right. But the judge was also right to say that the lack of the CTG did present some difficulties. I discuss later whether these difficulties were to the disadvantage of the defendant rather than the claimant. But I do not consider that the fact that the judge concluded that a fair trial was not impossible necessarily determined the question whether it would be equitable to allow the action to proceed.

There is, however, force in the second and third criticisms. The judge put in the scales the prejudice that the defendant would suffer by reason of the loss of the CTG and, above all, the fact that it would be required to face a claim arising out of events which took place so long ago. But nowhere did he mention the prejudice that would be suffered by the claimant if he were not allowed to prosecute this claim in circumstances where he had no alternative remedy. Mr de Navarro submits that it was obvious that the claimant would suffer such prejudice and the judge must have taken it into account. But it was equally obvious that the defendant would suffer prejudice in having to face such a stale claim, and yet the judge saw fit to mention that specifically. There is the further point that, if the judge did take the prejudice to the claimant into account, he did not explain why the prejudice to the defendant outweighed the prejudice to the claimant, particularly when he had decided that a fair trial was not impossible.

As regards the third flaw, the judge was wrong to take into account, as the explanation for the delay, the decision by the family not to sue but to make the best of a bad job. On the evidence, there was no basis for finding that the claimant had made a conscious decision not to sue the defendant when he acquired constructive knowledge of the relevant facts or at any time before 2005. Indeed, the judge himself had earlier recognised the importance for these purposes of the distinction between the claimant and his parents. The claimant never thought about the cause of his disability. That is why the judge found (rightly) that he did not have actual knowledge until 2005 and why the only knowledge that he had was constructive knowledge. He never made a decision not to sue.

It follows that the basis of the judge’s exercise of the section 33 discretion is undermined. It therefore becomes necessary for this court to exercise the discretion afresh.

In my judgment, the starting point is that the judge was right to find that a fair trial is still possible in this case. The principal factual issue is whether Dr Breeson attempted a forceps delivery for at least half an hour before summoning assistance. A subsidiary issue is whether he used Simpsons forceps rather than Kiellands forceps. Unsurprisingly, Dr Breeson has no recollection of the claimant’s birth. His evidence is that it is “inconceivable that I would have not done anything for 30 minutes or more if there were or I believed there to have been continuing Type 2 dips, as alleged by the claimant”. Dr Breeson’s recollection of the delivery of the claimant is now no weaker than it would have been if the proceedings had been issued within the primary limitation period (which expired on 6 September 1995). Furthermore, on the basis that (as I have held) the claimant did not acquire constructive knowledge until 1998, the limitation period in this case did not expire until 2001, no more than 5 years before the proceedings were issued. The judge said that fading memories was not a “major factor” here. I would go further and say that it is a factor of little, if any, significance.

The main point made by Mr de Navarro is that the defendant has been prejudiced by the fact that the CTG is no longer in existence for the period between 21.10 and 22.00 hours. The evidence of Ms Gloria Deauville is that each CTG trace is barcoded and retained for 25 years unless someone asks to see it. The relevant CTG trace would, therefore, have been destroyed in this case in about 1999, since no-one asked to see it. It would have shown the fetal heart rate during the critical period. In the result, the only records available are the hospital notes. As I have said, these show that there were type II dips at 21.10 hours. The next entry is at 22.00 hours and this states “Kiellands forceps delivery of live boy”. Mr de Navarro’s point is that the CTG might have shown that at some time between 21.10 and 22.00 hours, type II dips were replaced by type I dips (which are not indicative of fetal stress).

I agree that the lack of CTG means that the court may well be less well equipped to make correct findings of fact than would otherwise have been the case. But the assertion that the defendant has been prejudiced by the absence of CTG assumes that it would have contained material which was favourable to the defendant. There is, however, no reason to suppose that it would have favoured the defence case more than the claimant’s case. It might have been neutral. It might have shown that at some time between 21.10 and 22.00 hours, the dips became type I. Or it might have shown that they remained type II dips. Since the burden of proof at trial would be on the claimant, I do not see any basis for concluding that the defendant has been prejudiced more than the claimant by the lack of the CTG.

The trial judge would have the hospital notes. He or she would know that at birth the baby was in a very poor state. Crucially, the judge would have to weigh the evidence of Mrs Whiston (a nurse who had trained as a midwife) as to what Dr Breeson did against that of Dr Breeson as to what he would have done in the circumstances.

A fair trial is, therefore, still possible. That conclusion strongly suggests that it would be “equitable” to allow the action to proceed. But it is not decisive. It is necessary to have regard to all the circumstances of the case including the factors set out in section 33(3)(a) to (f). I have already dealt with paragraph (b). As regards paragraph (a), it is of importance that the claimant did not make a conscious decision not to start proceedings once he knew that he had a claim. He did not know that he had a claim until late in 2005. He did not have actual (as opposed to constructive) knowledge of the relevant facts until late in 2005. He is not to be criticised for this, although I have held that he did not exhibit the curiosity of the reasonable person in his circumstances. He was coping remarkably well despite his disabilities. He wanted to get on with his life. In deciding whether it would be equitable to allow this claim to proceed, the claimant’s reasons for not showing the curiosity of the reasonable person are relevant. In my judgment, the reasons given by the claimant in this case should not be held against him in the exercise of the section 33 discretion.

As regards paragraph (e), it is not said by Mr de Navarro that the claimant did not act promptly and reasonably once he acquired actual knowledge that there were acts and omissions of the defendant to which his disability was attributable which might be capable of giving rise to an action for damages.

Finally, if the claim is proved, the claimant has suffered serious injury as a result of the defendant’s negligence for which he would be awarded substantial damages. The claimant’s current condition and prognosis are described in the report of Professor Schapira. When Professor Schapira first saw the claimant on 11 January 2007, he found him to be severely dysarthritic, to have marked involuntary movements comprising choreoathetosis affecting all limbs and the face, together with dystonic posturing, again affecting all four limbs and his lower face and marked inco-ordination which is a combination of these severe involuntary movements and ataxia. When he saw the claimant again on 7 January 2008, he found that his condition had deteriorated significantly. He could now barely walk independently. His chorea and dystonia were worse; his speech was significantly worse; although he could still feed himself, he found this much more difficult; he needed help getting in and out of the bath and washing, shaving and dressing; and he had more seizures than previously.

The practical consequences of his current condition are that his mobility is severely restricted (he uses a wheelchair outside his home) and he is dependent on his mother for most of the practicalities of day to day life. He has considerable speech difficulties and cannot write (although he can and does use a computer/email to communicate). He is now only able to work intermittently from home. He lives in accommodation provided by the local authority which has, to some extent, been adapted. His parents are in their 60s (his mother is 68) and they will not be able to provide him with care and assistance for much longer.

In these circumstances, I accept the submission of Mr Havers that any damages awarded to the claimant will be substantial. If he is not permitted to pursue this claim, he will therefore lose all prospect of his future needs being properly provided for and all prospect of recovering compensation for the loss of the substantial earnings that, but for his disability, he is likely to have achieved. In my judgment, this is an important factor to bear in mind when deciding whether in all the circumstances it would be equitable to allow this claim to proceed.

Weighing all the factors to which I have referred, I am satisfied that, despite the fact that the allegations of negligence relate to what happened in September 1974, it would be equitable to allow this claim to proceed. I would, therefore, allow the cross-appeal and disapply section 11 of the 1980 Act.

I agree with the judgment of Dyson LJ. I add a few words on discretion under section 33 since we are differing from the judge. I agree that the judge’s own exercise of discretion is undermined by his conclusion that the family had taken a positive decision that he would not take proceedings. The actual finding of the judge is that the claimant himself did not think about it and that the matter was not discussed within the family because they wanted to look to the future rather than live in the past. It is right to say in defence of the judge that he was engaged in a difficult notional exercise. He had already decided that the case was not time-barred since Mr Whiston had neither actual nor constructive knowledge for the purpose of section 14 of the 1980 Act. For the purposes of the notional exercise of discretion he assumed (and in reality had to assume) that Mr Whiston had actual knowledge at the age of 18.

We are in the easier position of knowing that we have decided that Mr Whiston did not have actual knowledge at that date but did have constructive knowledge by 1998 because a reasonable person in his position would then have made inquiries of his mother about events in the course of his delivery.

For the purpose of section 33 of the Act we can look at the matter subjectively. The position is that the claimant did not make any inquiries; I agree with Dyson LJ that that was understandable in his own family circumstances. Should he now be allowed to proceed?

That has to be decided mainly on the balance of prejudice to each party. Mr Whiston has an arguable claim supported by Dr Myerscough which, if he is not allowed to pursue it, means that he will be unable to recover any compensation for his serious condition. On the other hand if he is allowed to pursue it, the Strategic Authority will face a very stale claim. The notes between 9.10 and 9.55 are exiguous perhaps because relevant information might have been contained in the CTG documentation (now, reasonably enough, destroyed) and possibly in a partogram (though no one can be sure if one ever existed). This absence of relevant information does not just prejudice the defendants; it means also that the claimant will not have as much potentially supportive evidence as he might have had.

The position therefore is that, if the case goes ahead, Mrs Whiston will give her account of the SHO trying a forceps delivery for half an hour and failing, before calling the Registrar. The SHO (now as it happens himself an obstetric consultant) will give evidence that it is highly unlikely that, if Type II decelerations were occurring, he would have tried to deliver over so long a period because that would be contrary to all good obstetric practice. While one does not envy the judge having to make a decision on the available material, there is no doubt to my mind that, with the assistance of the witnesses a fair and correct decision can be reached. The judge himself agreed with that proposition.

In those circumstances, while I recognise that this is a borderline case (and think the answer to it would be different if Mr Whiston had himself made a positive decision not to sue and then changed his mind) it is right that our discretion should be exercised to disapply the time limit.

I agree with the judgments of both Lord Justice Dyson and Lord Justice Longmore