Khairule v North West Strategic Health Authority

The Claimant, Jonathan Khairule, was born by emergency caesarean section at 21.25 on 18 June 1981 at the Tameside General Hospital. His mother, Verna Edwards, was then just 18 and the Claimant was her first baby.

At birth the Claimant’s condition was described as “very poor”. His Apgar score remained 1 at 5 minutes. He was intubated and resuscitated in theatre and transferred to the SCBU. He went on to develop a hypoxic-ischaemic encephalopathy and, at some point during the first year of his life, he was diagnosed as suffering from an athetoid form of cerebral palsy, with preservation of intellect.

A letter of claim dated 6 March 2006 was sent to the Defendants’ solicitors, in accordance with the clinical negligence disputes pre-action protocol, and proceedings were subsequently issued against the Defendants on 26 July 2006. The Claimant alleges, essentially, that he suffered profound asphyxiation leading to circulatory collapse at around the time of his birth; that the period of pre-delivery asphyxial insult continued for a further 5 to 10 minutes after his birth; and that the total period of hypoxia caused the damage to his brain and the athetoid form of cerebral palsy from which he suffers. It is not in dispute on the pleadings that, had the Claimant been born just 5 minutes earlier, at or before 21.20, he would probably not have sustained brain damage.

The Claimant alleges that his brain damage was caused by the negligence of the medical and midwifery staff attending his mother’s labour, in particular in restarting the Syntocinon infusion at 21.00 hours; in attempting unsuccessfully to deliver the Claimant vaginally, first by Ventouse extraction and then by forceps; and in failing to decide to deliver him by caesarean section well before 21.00 hours. All the allegations of breach of duty are denied, the Defendants contending that the labour and delivery were managed entirely in accordance with appropriate contemporary practice.

The Defendants also raised a limitation defence and it is common ground that, since the Claimant reached his age of majority on 18 June 1999, the primary limitation period under section 11 of the Limitation Act 1980 (the Act), subject to the Claimant’s date of knowledge, expired on 18 June 2002. By special agreement of the parties the notional date of commencement of this action is 6 March 2006.

The Claimant’s case is that his date of knowledge (actual or constructive) was in November 2005, when he received supportive expert opinion confirming that his injury was capable of being attributable to the acts or omissions now relied on in the Particulars of Claim as constituting negligence for which the Defendants are liable. Alternatively it is said that his date of knowledge was no earlier than the 27 July or the 7 March 2003 (three years before the actual or notional date of issue of proceedings).

By order of the Court the question whether the Claimant’s action is statute-barred was tried before me as a preliminary issue. The agreed issues were therefore:

By the date of the hearing before me the Defendants were no longer contending that, before 6 March 2003, the Claimant had actual knowledge of those matters listed in section 14(1). It was therefore unnecessary for me to hear oral evidence from the Claimant, who denies that he did. The hearing therefore proceeded on the basis of the parties’ submissions as to the Claimant’s constructive knowledge; and, if I found that he ought to have had the relevant knowledge before 6 March 2003, whether I should exercise the section 33 discretion in his favour and allow the claim to proceed.

I have determined these issues on the basis of the agreed bundles of documents, including the witness statements of the Claimant and his responses to further questions; the witness statements of Lindsay Gibb and Amanda Callaghan of the Claimant’s and Defendants’ solicitors respectively; and the medical reports of Mr. Jarvis (12/7/06) and Mr Thomas (21/8/07), consultant obstetricians and gynaecologists instructed by the parties, and of Professor McLellan (4/5/06, 18/9/07 and 14/1 and 6/3/08), consultant neurologist and professor of rehabilitation, instructed on behalf of the Claimant. At the invitation of the parties, following the conclusion of oral submissions, I have also viewed a “day in the life” DVD showing the Claimant carrying out various daily activities, and have read the core bundles of various medical and social services/education records, which were extensive.

The Claimant is now aged 27. The effects of his athetotic cerebral palsy and his resulting abilities and disabilities are helpfully summarised in Professor McLellan’s reports. His is a pattern of cerebral palsy in which the limbs, trunk, neck and face are involved in continual, involuntary movements and in which the limbs flex and extend in a jerking or writhing motion. The intensity and force of these movements or spasms is less when he is relaxed and greater when he is attempting any form of voluntary activity, or is excited or upset. The Claimant currently spends a great deal of his time in a wheelchair, which he mobilises with the assistance of a personal carer, who also helps to feed, wash and dress him and to move him when he is out of his wheelchair. He is able to travel on buses and in a car, although he does not often do so.

Despite his very severe physical difficulties, the Claimant has been in general good health over the years. His intellect has been preserved. Professor McLellan’s impression, on examination, is that the Claimant is someone of normal intelligence or even of “above average intelligence,” with the “personality and intellectual ability to undertake further education and possibly employment”. His sight and hearing are normal. However, a major problem for him is his inability to speak and his method of communication, since about 1998, has been via a Litewriter, in which individual letters can be displayed by touching the appropriate key with his nose. He also has a personal computer, using a similar method for operating that keyboard, and a special mouse, which enables him to use the computer independently. Since the Claimant cannot use a telephone he uses on-line instant messaging or email to communicate with others. Typing one letter at a time is a tedious process, as Professor McLellan describes, “which requires considerable concentration and is also tiring and causes considerable discomfort around the neck and head”. The Claimant has had to be “very single-minded in concentrating as far as he possibly can on his present and future needs” and has had to overcome “very considerable problems” (see page 163c of the bundle).

The Claimant’s childhood years and home background are described as “very unsatisfactory”. Having read the documents, and in particular some of the social services records, I agree with that assessment and with Professor McLellan’s observation that “his upbringing took place in very adverse circumstances and … he has never received adequate support from his family.” The Claimant does not remember his father and describes living in an abusive home and being physically and emotionally neglected. There were serious concerns as to his mother’s ability to care for him. There are references to his mother’s problems with alcohol and substance abuse and the Claimant was, at one stage, placed on the Child Protection Register. He was regularly seen at hospital due to concerns as to his nutritional and physical development.

In spite of, or perhaps because of, these disadvantages the Claimant at school showed himself to be an “independent little boy with a stubborn streak” and an “active intellect” who, despite difficulties in making himself understood “never gave up” until he got his meaning across. At secondary school reports referred to him as a boy who “talks and listens confidently in a wide range of contexts”; who “pays close attention to what others say, asking questions and making contributions which develop ideas and takes account of others’ views while conveying his own opinions”. In 1997 he was said to show “understanding of a range of texts, selecting essential points and using inference and deduction as appropriate”. It was said of him that “he retrieves and collates information from a range of sources”.

There are also references to him being “very bright” and “very intelligent” although, as Professor McLellan points out, the Claimant was attending special rather than mainstream schools, where summaries of educational progress prepared by staff traditionally tend to emphasise the positive aspects of a student’s performance and to understate the problems. The Claimant left school in 1997 with three GCSEs in Maths (Grade D), Science (D) and English (E).

The Claimant describes being desperate to leave home, even though he could do nothing for himself, due to his unhappy home circumstances. In 1997, aged just 16, he moved away and was, until June 2002, a resident student at Hereward College in Coventry, where he obtained GCSEs in Maths at Grade B, English at Grade D and GNVQs in Information Technology, gaining a distinction in the advanced course. Professor McLellan points out that disabled young people cannot complete their education and acquire social maturity as quickly as their non-disabled peers, and that they retain the right to continue their education until the age of 19 years, regardless of their level of academic achievement. This is due to the toll of dealing with the practicalities of day to day existence, and their relative social isolation from their non-disabled peers, factors which preclude them from acquiring the knowledge and understanding of which they are capable over the same time-course as non-disabled young people.

This seems to be borne out by the Claimant’s progress and achievements over time at Hereward. At college he was provided with a computer, to which he was permitted to have access during lectures and study time, and on which he had an independent email address and shared limited and controlled access to the internet. He accepts that, whilst he was at college, he developed confidence in using most Microsoft software programmes and in making PowerPoint presentations of researched material. He also learned the basics of the design and programming of software using Visual Basic; designed a web page for Coventry University; wrote and posted on the internet one or two short reviews of computer games; and developed sufficient confidence in his IT skill to advise others about avoiding computer viruses.

The Claimant was also President of the College Students’ Union from September 2000 to June 2001. Whilst he ended up resigning “because it got too much”, he accepts that, in that capacity and as one of a team of people, he undertook responsibility for student representation at college governor meetings; for promoting the Union and Union events internally, regionally and nationally; and for chairing executive meetings and overseeing the running of the Union.

The Claimant states that all this work, together with his studies and attendance at lectures, meant that he was involved with college studies or activities for some 40 hours per week. This he found to be exhausting given his severe physical disabilities and given, in particular, the tiring and time consuming method of communication.

At college it seems that the Claimant had little direct or regular social worker support, at least between 1998 and 2001. Although there appears to have been a long-term social worker called Margaret Richardson on the scene, and a social worker allocated to children with disabilities called Davyd Simpson, there is little evidence to show that the claimant saw either of them regularly. The aim, as his time at Hereward came to an end, was for social workers to plan for the Claimant’s transition to adult services after June 2002. However, the transition proved lengthy and turbulent. The Claimant was in respite care from July to November 2002, which was a time of turmoil for him. Suitable accommodation had to be applied for and secured, and an appropriate care package and funding streams identified, all of which involved the Claimant in complex administrative procedures and, as is clear from the documents, in a number of disputes with various representatives of the social services. Between June 2002 and January 2003, the Claimant attended a large number of meetings (Professor McLellan refers to nineteen) relating to his negotiations with the statutory services. A number of problems were highlighted, as to both the adequacy of the care being provided for him and his relationships with the members of staff charged with providing his care.

The Claimant left respite care at the end of November 2002. He then moved into a new flat which had been secured for him and at that stage bought his own computer. About a week or two later, and therefore in approximately December 2002, the Claimant was able for the first time to have unrestricted access to email and the internet.

Throughout 2003 the Claimant continued to make efforts to improve the organisation of his care, to find and fund appropriate carers and secure appropriate equipment, to identify external courses or voluntary work in which he could participate; and to apply for and receive statutory benefits on a regular and predictable basis. There were a number of disagreements which arose in relation to the Claimant’s needs, no doubt exacerbated by difficulties in ensuring effective communication.

On 7 March 2003 the Claimant sent a detailed email in which he set out articulately a “formal complaint” about the various problems he had encountered over the previous two years. He asked for action to be taken in a number of respects, failing which he threatened legal action against the “relevant bodies”. Attached to this email was a 17 page statement detailing the events said to have occurred since the time that the Claimant first requested help with his transition from Hereward College, and the ways in which he considered he had been “abused, ripped off, misinformed or victimised” by various individuals and organisations.

A further email from the Claimant to social services, dated 1 December 2003, raised further problems of this kind and referred to the “dozens of emails” sent by him previously, in which he had been raising similar concerns. The Claimant attached to an email dated 27 February 2004, concerning his claim for Disability Living Allowance, a document showing all his outgoings since June 2002; and he accepts that he regularly monitored and kept accurate records relating to his finances.

The mother of one of his best friends at college, Heather Parker, was a local councillor, who knew the Claimant well and took steps to assist him in his dealings with social services. At Volume B at page 217 an insightful email from Heather Parker, dated 23 February 2004, states materially as follows:

“I am concerned that Jonathan's package of care isn't stable and that as a young adult who has only been out of residential care for just over a year - he still needs someone who is there to assist him to become more used to being independent. I have been involved with Jonathan for some time and my observation is that, whilst he may dramatise a little at times, he has never had to think about anything in the past such as bills, meals, friends, getting out and about, work, keeping himself occupied.

As a severely disabled child and young person, he was never encouraged to think for himself and certainly never had to deal with any practicalities. All young people need help when they leave home, most able bodied young people, however, have gradually learned to deal with things themselves whilst at home and have parents who are willing to help when they leave. Jonathan is disadvantaged in both these respects as the special school system is incredibly disempowering and Jonathan has no help or support from his family at all - if he was a care leaver, then we as a City Council would certainly be offering him much more support than he has received.”

The Claimant told Professor McLellan that, although he had lots of friends at college, he had had little social contact since moving into his new home. Whilst he has a live-in personal assistant to provide the necessary care, Professor McLellan describes his home as being in a “relatively far flung suburb in which there are few amenities” with little opportunity for wider social participation and interaction. There are references in the records at the end of 2003 to his “social isolation” and his need to develop closer relationships. These problems are apparently continuing. The Claimant appears to have had little, if any, contact with his mother or other members of his family since leaving home in 1997.

Professor McLellan states that the Claimant is accepted as being an intelligent person, who has the capacity to analyse situations, formulate a rational response to situations and exercise judgment over matters affecting his day to day life. He agrees that there is no question of his capacity in these areas. However, he also emphasises the complications and difficulties that the Claimant has had to surmount in order to achieve his current level of autonomy, in particular during 2002 and 2003, and he regards him as someone who is “still very physically and socially isolated and has access only to a very slow and basic means of communication with others”. In his report of 18 September 2007 (page 159) he said as follows:

“I think it is important to appreciate the very considerable daily effort, both physical and psychological, that getting through each day demands of Mr Khairule. Despite the severest physical disability he has been single-mindedly and with remarkable determination doing his best to establish himself in as autonomous position as possible, and has had to face the fact that unless he himself took control of his situation and negotiated a lifestyle that truly recognised his needs and aspirations, he would have no future. If he had been someone who instead searched for excuses or sought to blame others for his misfortunes he would never have achieved what he has.”

This, in my view, is an accurate and reliable assessment of the Claimant’s circumstances, his character and level of determination on the basis of all the material before me. The Claimant stated that he wished to emphasise in particular “just how important the development of the internet has been, as without it I would have no means of communication with the outside world.”

The Claimant describes his own understanding of his injury at paragraphs 13 - 16 of his main witness statement. Before he contacted his solicitors (the first contact is accepted as being on 17 February 2004) he did not ask many questions about his disability. He states that he did not feel comfortable raising such questions and, further, that he did not see the point because he had been born with the disability and had just accepted it as part of the person he was. He states, “I already knew the symptoms and, because CP is non-progressive, I’ve always seen my disability as part of me”, and a little later “I just thought it was something I was born with and that I had to accept”.

However, the Claimant must have asked his mother something about his disability when he was a child, because at paragraph 14 he says as follows:

“The only explanation I had received was from my mother when I was about 7 or 8 years old. I was told I was born at term and, I think, by caesarean section. She told me that I wasn't breathing, or stopped breathing, when I was born or shortly afterwards. I was told that the oxygen was delivered to my brain by an opening in my forehead. I was not given any explanation as to why I did not breathe at first and thought it was simply because 1 did not know how to. As a child I thought that the lack of oxygen had caused my brain to rot and I had lost parts of my brain as a result.”

There is no evidence of any further discussion between the Claimant and his mother. The Claimant says in his supplemental witness statement that:

“She might or might not have been able to tell me something about my disability that led me to appreciate that it was a consequence of what others did or failed to do, but we were not a family in which that sort of discussion could ever have taken place.”

The Claimant says that his understanding of what actually happened during his delivery has only come about since he started investigating his claim with the help of his solicitors and, more particularly, when he saw the report from Mr. Jarvis in November 2005.

After he contacted his solicitors in 2004 he asked his mother what she had been told about the birth and describes what she then told him as follows:

“… She said "The doctor put me (meaning my mother) through a lot, you (meaning me) were not ready to be born. They started me off in labour and I was out of it. By this time they wanted me to push but I could not because I was drugged up. They tried everything to get you out. They put a rope around your neck to pull you out, I had never heard of rope before. They put a rope around your neck to pull you out but you were not ready. Then you stopped breathing. When I was having Anthony (my younger brother) I was told what they did - the midwife said she remembered me from my last baby. She said she has never seen anything like it - the doctors went over the top.”

Lindsay Gibb states that Sara Burns of the Claimant’s solicitors spoke to the Claimant’s mother on 25 March 2004, but that she was unable to provide much information about the circumstances surrounding the birth because her memory of events was poor, partly due to the fact that she was on painkilling medication during labour. Ms Gibb continues:

“She was able to tell us that she had been admitted for an induction, but she was not having contractions and so they had tried to pull the baby out with forceps and, she believed, a rope. She told us that she ultimately needed an emergency caesarean section, but this was the extent of her knowledge. After the delivery she did not see Jonathan again until he was four days old.”

The Claimant says that he had never contemplated claiming for his injury because nobody had ever explained to him what actually happened during the birth or suggested that his injury might have been avoided. In his answers to written questions he responded as follows:

“1.

When did you first know that your disabilities were capable of being attributed to (caused by) acts or omissions on the part of staff at the hospital where you were born?

Either when Sara (Burns) told me via email around November 2005 or during the meeting we had with Dr Jarvis.”

At paragraph 18 of his main witness statement, the Claimant said this:

“18.

I started college when I was 16 years of age when I met other people with Cerebral Palsy but we never openly discussed the cause of our injuries. Three years on, when I was about 19 years of age, one of my close friends from college confided in me that she had been compensated for her Cerebral Palsy. I believe she never mentioned this to me before because suing the NHS can be deemed controversial and you do not want to go round telling everyone that you have over a million pounds; she therefore did not confide in me until she knew me well and could trust me. We did not really discuss the details of her claim and I just assumed she had an accident which had made her get CP.”

And at paragraphs 22 – 24:

“22.

It was not until 2003, when 1 found that several of my friends from college had moved from college into their own private houses that I made the link between Cerebral Palsy and compensation. This was the first time I had the time to properly speak to my close friend about her claim with a free mind in order to get some more detail and after speaking to her and understanding what the claim might be about I decided I should investigate the possibility of claiming further.

23.

So, at the end of 2003 I did some research on the Internet and e-mailed The National Injury Helpline, Fentons Solicitors and some other general personal injury firms the names of which I cannot recall. They all replied to me to say that either they did not deal with clinical negligence claims or that I was out of time. I then decided to refine my search to look for firms who specialised in CP claims, which is when I contacted Irwin Mitchell. They were the first firm who offered to come and visit me in order to take more information from me.

24.

When I contacted these firms I still only knew what my mother had initially told me, as set out above. I had no idea whether I could claim but thought I had nothing to lose.”

He provided further details about the matters dealt with in these paragraphs in written responses to questions, as follows:

“2.

Why did you not discuss the details of the claim your friend had made? What caused you to assume that she had had an accident?

The reason why I didn't chat more was because I was very busy at the time and it was likely that we chattered about it during a tea break. In addition I never knew about the under 21 years rule until I started proceedings in 2003. We both spoke verbally because we chose to, but her speech is worse than mine. I just presumed that she had had an accident.

3.

What in fact did she tell you about her compensation claim in 2000/2001 when you were 19?

She actually told me that she was in the middle of claiming compensation. I do not remember her giving me any other details.

4.

What was it about friends moving into their own homes that caused you to make the link between cerebral palsy and compensation? What was the link that you made?

Because several people with CP were compensated and living a life better than me. This started to make me think and send an email to various solicitors. This email was just curiosity; I never thought it would lead anywhere.

5.

What additional information did you obtain from your close friend in 2003?

Nothing. In 2003 I had to time to think and act.

6.

When in 2003 did you discuss matters further with your close friend?

I did not. However, I could visit her outside Hereward College and see her life. At college everyone lives in identical rooms and live similar lives so you cannot see how wealthy or poor they are.”

The Claimant’s written evidence contains the following further information, which is relevant to the issues I have to determine at this stage. In his main witness statement, when referring to his time at Hereward College and his reliance on others for his everyday needs, having described his involvement with the college for some 40 hours per week as exhausting he says that this meant he had “little free time at all in which I could start to contemplate researching my potential ability to claim.” Ultimately, he says,

“… college did not prevent me from pursuing a claim, but the college work did prevent me from actually knowing I had a claim to pursue. However, had I not gone to college I would never had met the friend who told me about her claim and I would ultimately never have known about the possibility of claiming.”

In his supplemental witness statement he adds the following:

“9.

When I left home to be at Hereward College it was an entirely new life in a new place with new people to meet. I had difficulties making friends who were confidants. I felt very alone. … in so far as the Court is being invited to conclude that I had the time and ability to look into the causes of my disability I have to stress that my day to day emotional concerns (let alone practical problems) were, and are, overwhelming.”

After moving out of Hereward College in June 2002, he said:

“… I needed to use all my strength and energy just to do this and try and put my past behind me and create some sort of bearable life for myself …. I had to move to a flat in Coventry where I knew no-one and knew nothing about the area. I had no furniture and no computer. I therefore had to focus on getting myself a home and the basic care I needed, but as soon as I was in position to do so I set about trying to find someone who might advise me about clinical negligence claims….

… until 2004 I was just trying to get some sort of education and home life despite my severe disabilities and abusive/neglected upbringing. I firmly believe that as soon as I had any window of opportunity to contact a Solicitor I did so. ”

Finally, in response to a question as to when he first obtained unrestricted internet access the Claimant said as follows:

“I had this within a couple of weeks of settling into to my new flat. I had a new care package which was not going well and so I was not able to spend much time on the Internet. When I was using the Internet this was because I was complaining to Social Services and I was going through everything that I detailed in the long letter [9/3/03] that I wrote to Social Services. I mentally was not able to look in to a claim during this time.”

By virtue of section 11(3) and (4) and section 28(1) and (6) of the Act, the Claimant’s action being one for damages in respect of personal injuries, his action shall not be brought (subject to section 33) after the expiration of three years from the date of his 18^th birthday or from his date of knowledge, if later.

So far as is relevant, section 14 defines the date of knowledge for this purpose as follows:

“s.14 Definition of date of knowledge for purposes of sections 11 and 12.

(1)

... in sections I1 and 12 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; and

(c)

the identity of the defendant;

……

and knowledge that any acts or omissions did or did not, as a matter of law, involve negligence, nuisance or breach of duty is irrelevant.

(2)

For the purposes of this section an injury is significant if the person whose date of knowledge is in question would reasonably have considered 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.

(3)

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 medical or other appropriate expert advice which it is reasonable for him to seek;

but a person shall not be fixed under this subsection with 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.”

In this case the important provisions are section 14(1)(b) and 14(3). It is not in issue that the Claimant knew that his injury was significant or that he ought reasonably to have been able to identify the Defendants. It is in relation to section 14(1)(b) that the heart of the dispute as to constructive knowledge lies.

Mr Maskrey QC, for the Claimant, submits that, on the current state of the authorities, the test for determining the date of constructive knowledge is when a reasonable person in the circumstances of this Claimant and having suffered his injuries and disabilities, would have had the curiosity to start investigating, with expert help, the cause of his injury. Mr Maskrey draws a distinction in this context between a Claimant’s objective circumstances, which he says are to be taken into account, and the Claimant’s perception of his circumstances, by which he means his individual characteristics such as intelligence or shyness, which are not to be taken into account save to the extent that any such characteristic is derived from the injury itself.

The objective circumstances of this Claimant will include, he submits, not only the nature and extent of his disabilities and the fact that he was born with them, but, in addition, such factors as information he actually received, the ease or otherwise with which he could obtain information, and his family or other circumstances which may have inhibited him from obtaining information. It is wholly unrealistic to leave such factors out of account in asking when a reasonable person in the situation of this Claimant ought to have started the train of enquiry running. He submits, therefore, that in deciding whether this Claimant is to be fixed with knowledge under section 14(1)(b), I should take into account the following: the severity of his disability and its extraordinary impact on his ability to communicate; the fact that he has had to cope with his disability without the benefit of a tight-knit, communicative family and against a background of turmoil and adverse home circumstances; the scale of the effort required and the determination with which he has had to apply to obtain and pursue an education since leaving home, and to ensure that he can live autonomously with appropriate care, services and benefits and cope with the day to day challenges of just living his life; and the fact that, on the evidence, no single professional, at any stage, ever asked him why he was as he was, or said anything to him about the cause of his disability that might have set him on a train of enquiry.

On the evidence, therefore, Mr. Maskrey invites me to conclude that there is nothing to fix this Claimant with knowledge other than that which the Claimant states did, in fact, cause him to start investigating in late 2003 (see paragraphs 32 and 33 above); and that his date of knowledge should be held to be no earlier than 6 March 2003 and therefore within the period of three years before the notional issue of proceedings on 6 March 2006.

Mr Westcott QC, for the Defendants, submits that the test suggested by Mr Maskrey is not in accordance with the present state of the law, although even if it were he submits that it would make no difference in this case to what should be the outcome on the issue of constructive knowledge. Mr Westcott submits that the correct standard in the test for constructive knowledge is that of the generic group of reasonable adult sufferers of athetoid cerebral palsy with preservation of intellect, and with the disabilities that this Claimant has. In applying this test the Court should not take into account the characteristics or circumstances of the individual Claimant, unless they result directly from the injury itself. These matters fall to be considered only under section 33, not section 14.

Mr Westcott argues that in the general run of cases those who suffer injury should be expected to show a level of curiosity about its cause; and this will apply just as much to someone who has suffered with athetoid cerebral palsy from birth as to someone who suffers injury due to an adverse event in his adult years. Thus he submits that I should have regard to the young age of this Claimant, and to the nature and the extent of his disabilities, but to nothing more in determining when a reasonable young adult with his level of disability ought to have had the curiosity to start investigating with expert help the cause of his disability.

Applying that test to the evidence in this case Mr Westcott contends that this Claimant is to be fixed with the relevant knowledge much earlier than March 2003. If it were otherwise he submits that the effect would be that the limitation period could be extended indefinitely, with Defendants constantly at the risk of facing stale claims, which is unjust and contrary to the policy of the Act.

The starting point for considering constructive knowledge is now Adams v. Bracknell Forest Council [2005] 1AC 76. Reviewing the history of section 14(3) and the relevant authorities Lord Hoffmann, with whom Lord Phillips and Lord Scott agreed, Baroness Hale and Lord Walker expressing slightly different views, said this at paragraph 47:

“In my opinion, section 14(3) requires one to assume that a person who is aware that he has suffered a personal injury, serious enough to be something about which he would go and see a solicitor if he knew he had a claim, will be sufficiently curious about the causes of the injury to seek whatever expert advice is appropriate.”

His reasoning at paragraphs 42 – 47 was as follows:

“42 In recent years the courts have tended to emphasise the objective element in the constructive knowledge test and to reduce what Lord Macmillan in Glasgow Corpn v Muir [1943] AC 448, 457 called ‘the personal equation’. In Forbes v Wandsworth Health Authority [1997] QB 402 the question was whether the plaintiff, who had a history of circulatory problems in his legs, ought to have sought advice as to why an attempted bypass 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 and resulted in a loss of blood supply which threatened gangrene. This was not in itself alleged to be negligent, but the surgeon had made a second unsuccessful attempt to operate on the following day and the plaintiff was advised that he would have had a better chance of success if he had tried again earlier.

43 The judge found that the plaintiff (who had since died) did not have constructive knowledge that the loss of his leg was caused by any act or omission on the part of the surgeon. He trusted the surgeon (who had performed two previous successful operations on his legs) and thought 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 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. He pointed out that otherwise the limitation period could be indefinitely extended. Until three years after the date of knowledge was found to have been passed, the plaintiff had an absolute right to sue. This could 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 power to allow him to sue when it was equitable to do so. …….

44 Evans LJ, at p 422 likewise relied upon the policy and scheme of the Act as a whole:

‘Since there is a wide discretionary power to extend the period in circumstances which Parliament has defined in section 33, there is no clear requirement to construe the knowledge provisions in section 14 narrowly or in favour of individual plaintiffs. I therefore consider that they should be interpreted neutrally so that in respect of constructive knowledge under section 14(3) an objective standard applies.’

At paragraph 49 he added that:

“If the injury itself would reasonably inhibit him from seeking advice, then that is a factor which must be taken into account.”

He referred at paragraph 51 to:

“…the normal expectation that a person suffering from a significant injury will be curious about its origins …”

and continued:

“In the absence of such an expectation, there is no reason why the limitation period should not be prevented from running for an indefinite period until some contrary impulse leads to the discovery which brings it to an end. For the reasons given by Stuart-Smith LJ in Forbes's case [1997] QB 402, 412, this could face a defendant with a claim so stale as to be virtually impossible to defend.”

Agreeing, Lord Scott said this at paragraph 71:

“71 As to the second issue, the proper approach to section 14(3) of the 1980 Act, I, like my noble and learned friend, Lord Hoffmann, prefer the reasoning of Stuart-Smith and Evans LJJ in Forbes v Wandsworth Health Authority [1997] QB 402 to that to be found in Nash v Eli Lilly & Co [1993] 1 WLR 782. The reference in section 14(3) to ‘knowledge which he might reasonably have been expected to acquire’ should, in my opinion, be taken to be a reference to knowledge which a person in the situation of the claimant, i e an adult who knows he is illiterate, could reasonably be expected to acquire. Personal characteristics such as shyness and embarrassment, which may have inhibited the claimant from seeking advice about his illiteracy problems but which would not be expected to have inhibited others with a like disability, should be left out of the equation. It is the norms of behaviour of persons in the situation of the claimant that should be the test.”

It is the phrase “in the situation of” in that final sentence that leads Mr Maskrey to submit that this is substantially an objective test; and that, although the Claimant’s personal characteristics should be left out of the equation, his objective circumstances or situation can and should be taken into account. He points out, correctly, that Lord Walker observed that the test is not wholly objective and that “the distinction between circumstances and personal characteristics is intelligible and helpful in many cases, but there are bound to be some where the distinction is elided.” Lord Walker also expressed caution as to putting forward any simple formula to cover every case that might occur.

Subsequently, in Catholic Care (Diocese of Leeds) and The Home Office v. Young [2006] EWCA Civ 1534, the Court of Appeal were concerned with limitation in the context of claims brought by adult victims of child sexual abuse. At paragraph 41 Dyson LJ, with whom Buxton LJ and Sir Peter Gibson agreed, said as follows:

“41.

In Adams it was held that a substantially objective test was to be applied for the purposes of section 14(3)(b). That is to say, in deciding what knowledge a claimant might reasonably be expected to acquire from facts observable with the help of expert advice which it is reasonable for him to seek, the claimant is to be assumed to be a person who has suffered the injury in question, but in all other respects he is to be assumed simply to be a reasonable person. In determining whether a claimant had knowledge which he might reasonably be expected to acquire, the court has to consider how a reasonable person in the situation of the claimant would have acted, save that (per Lord Hoffmann, Lord Phillips and Lord Scott) aspects of character or intelligence peculiar to the claimant are to be disregarded. On the other hand, if the injury affects the claimant’s ability to acquire knowledge or to seek expert advice, these are matters that can be taken into account. But in all other respects, the claimant is to be regarded simply as a reasonable person. Thus, his personal characteristics, such as shyness, embarrassment, his intelligence and his general circumstances are irrelevant so far as section 14(3) is concerned. The dicta of Lord Reid (‘the test is subjective’) and Purchas LJ (‘the standard of reasonableness [is] finally objective but must be qualified to take into consideration the position, and circumstances and character of the plaintiff’) were wrong.”

Agreeing, Buxton LJ at paragraph 85 described the test as “when a reasonable man in the circumstances of the Claimant would reasonably turn his mind to litigation.”

In McCoubrey v. Ministry of Defence [2007] EWCA Civ 17, the Court of Appeal were concerned with the proper approach to section 14(2) of the Act, but Neuberger LJ, giving the leading judgment and with whom Ward LJ and Tugendhat J agreed, said this at paragraphs 50 – 52 in relation to both section 14(2) and (3):

“…In my judgment, the person contemplated by sections 14(2) and l4(3) is a person who is in the same position, in objective terms, as the claimant. … While I accept that the test is objective, in light of the reasoning in the Young case, it seems to me that that of itself does not prevent the objective circumstances of the claimant (as opposed to his character, intelligence, ambitions etc, all of which can fairly be characterised as subjective) being taken into account.

51.

While sections 14(2) and 14(3) concentrate on what is reasonable, and import an objective approach, they do refer to the person who has suffered the injury, which tends to suggest that the particular circumstances in which the claimant finds himself could at least be potentially relevant. Further, it appears to me that, in some (admittedly pretty rare, I suspect) circumstances, it may be difficult to identify what would be reasonable in relation to a person's reaction to a particular injury, unless one makes assumptions as to the objective circumstances in which that person finds himself. Read as a whole, I do not consider that what Dyson LJ said in paragraph [41] in the Young case is determinative of this issue either way. In the speeches of the three members of the House of Lords in the Adams case, on which I have relied, the objective circumstances in which the particular claimant finds himself are either not specifically excluded (see paragraphs [47] and [57]) or appear to be specifically included (see paragraph [71]).

52.

Accordingly, it appears to me that the proper approach to the question raised by section 14(2) is to consider, on the hypothesis postulated by the section, the reaction to the injury (as opposed to its possible consequences) of a reasonable person in the objective circumstances of the actual claimant, while disregarding his actual personal attributes, such as intelligence, aspirations aggressiveness and the like.”

The case of Young was one of the conjoined appeals heard in the House of Lords together with A v. Hoare [2008] UKHL 6, where the issue on appeal was knowledge in relation to significant injury in section 14(1)(a) and (2). At paragraph 39 Lord Hoffmann, with whom the other members of the House agreed, said this:

“39.

The difference between section 14(2) and 14(3) emerges very clearly if one considers the relevance in each case of the claimant's injury. Because section 14(3) turns on what the claimant ought reasonably to have done, one must take into account the injury which the claimant has suffered. You do not assume that a person who has been blinded could reasonably have acquired knowledge by seeing things. In section 14(2), on the other hand, the test is external to the claimant and involves no inquiry into what he ought reasonably to have done. It is applied to what the claimant knew or was deemed to have known but the standard itself is impersonal. The effect of the claimant's injuries upon what he could reasonably have been expected to do is therefore irrelevant.”

In the light of the approach adopted in these recent authorities it is now unnecessary and, in my view, unhelpful to refer to various passages from a number of earlier decisions in the 1990s, to which my attention was drawn. These are cases where either different language or phrasing was used, or the passages are so dependent on the particular facts of the case that they provide little assistance in determining the issues in the present case.

In my judgment the combined effect of the authorities referred to is that which was set out by Neuberger LJ at paragraphs 50 to 51 of McCoubrey. The person contemplated in section 14(3) is therefore a person who is in the same position, in objective terms, as the Claimant. Whilst the test is an objective one that, as Mr Maskrey correctly submits, does not prevent the Claimant’s objective circumstances being taken into account in asking the relevant question, namely when a reasonable person in the circumstances of this Claimant, suffering from athetoid cerebral palsy and with the same level of disability and intellect, would have had the curiosity to begin investigating with expert help whether his injury could be considered capable of being attributed to something the hospital staff did or did not do at the time of his birth. In asking that question personal, subjective characteristics such as shyness, embarrassment, aggressiveness, ambitions, aspirations etc are to be disregarded, save to the extent that any such characteristic is a direct result of the injury itself.

I agree with Mr Maskrey’s submission that the Claimant’s injury itself cannot be regarded as a trigger for fixing the Claimant’s date of knowledge of attributability. When assessing the extent to which someone is reasonably to be expected to be curious as to the cause of his particular disability, there is in my view a distinction to be drawn between someone who has lived with a disability and its effects from birth and someone who suffers injury following an adverse incident which happens in his later years. This Claimant’s cerebral palsy was, I agree, part of him and part of his life and he had lived with it for as long as he could remember.

It is also correct that there is nothing in any of the medical, educational or social services records to suggest that this Claimant was put on inquiry by any professional at any stage as to the cause of his disability. Nor do I regard the conversation he had with his mother at about the age of 7 or 8 as something which, either in its content or in the general circumstances in which such a conversation took place, was sufficient in itself to expect a reasonable sufferer of athetoid cerebral palsy, in the situation of the Claimant, to start the necessary train of enquiry as to the cause of his injury. There is ample evidence of the Claimant’s adverse family circumstances and of the very poor relationship he had with his mother, which renders it wholly unrealistic to expect him to have questioned her further, either as a child or after leaving home at 16 in the circumstances in which he then found himself, and following which, links with his family were effectively severed.

In any event the information that his mother gave him as a child reflects the assessments of her low level of intellect and immaturity referred to in the notes. Her account that he was born at term by caesarean section, that he was not breathing or stopped breathing when he was born or shortly afterwards, and that oxygen had to be delivered to his brain by an opening in his forehead would suggest, rather, that the hospital staff had been responsible for saving the Claimant’s life than for causing his disability.

In my judgment however the picture changes, albeit gradually and over time, between June 1999 and the end of 2002, as the Claimant matured and, in particular, as he gained independence and experience and secured unrestricted access to the internet, which has become his link with the outside world. I take into account this Claimant’s considerable communication difficulties, which are a direct result of the injury he sustained, and the fact that he had lived with his disability for the whole of his life. But the preservation of his intellect and, thereby, his ability to think and reason and to apply energy and commitment to the tasks in hand, whatever they were, are also relevant features of the particular disability he has.

Over the years the situation this Claimant was in includes the fact that he was able to make a number of friends at college, as he told Professor McLellan; that he was able, with concerted effort, to achieve success in his studies; that he was President of the Students’ Union for an academic year during which he accepts that, albeit as one of a team, he was responsible for carrying out a variety of organisational tasks and Union activities; and that although there was little regular contact with social workers until the end of his time there approached, the Claimant was from that point on in sufficient contact with social services personnel, who were in a position to give him advice if he requested it. In particular, given his acknowledged communication difficulties, the Claimant’s good level of computer literacy and familiarity with the use of email and the internet, upon which he now acknowledges his dependence, has enabled him, since gaining unrestricted access in December 2002, readily to obtain information from a wide variety of sources.

The Claimant’s own evidence is that, whilst his college work prevented him from knowing he had a claim to pursue, had he not gone to college he would never have met the friend who told him about her claim. His evidence is that this was in about 2000 or 2001; that she was one of his close friends at college and that she confided in him during a tea break, when she knew him well and felt she could trust him; and that she told him that she had been “compensated for her cerebral palsy” or “was in the middle of claiming compensation” for it.

In his witness statement, although not in his written answers to questions, the Claimant refers to speaking to this friend again in 2003 when he had “a free mind”, at which point he obtained from her further details and understood what her claim might be about. On his own evidence it was this, together with his knowledge of other college friends who had moved into accommodation using their own private funds, led him to start the train of enquiry in late 2003 which led, ultimately, to these proceedings.

I accept Mr. Maskrey’s submission that the information from his close friend, and the circumstances in which it was imparted to him, were not by themselves sufficient, in 2000 or 2001, to trigger a train of inquiry by the Claimant into the cause of his own disability, and that it was reasonable for the Claimant to conclude, at that time, that his friend might have been involved in an accident and not to seek to impose upon her confidence further by questioning her about it.

However the evidence, in my judgment, establishes that, by the end of 2002, this Claimant was aware of the following: that he suffered from cerebral palsy which was not a progressive condition, but which was a significant disability; that he suffered from it as a result of his inability to breathe at or shortly after his birth; that it was possible, as a result of what his friend had told him, to recover compensation for cerebral palsy; and that his continuing problems in relation to the transition to adult services, including his ability to obtain adequate accommodation, care services and equipment, were due to lack of funds and his need to rely upon statutory services. Notwithstanding his severe communication difficulties and his concentration on addressing his daily needs, the cumulative effect of these factors, of which the Claimant had knowledge, together with his access to others in a position to assist him and, by the end of 2002, his unrestricted access to the internet and to email, on his own computer and in his own flat, lead me to conclude that a reasonable adult sufferer of athetoid cerebral palsy with preservation of intellect and with this Claimant’s disabilities and in the situation that this Claimant was in would, by the end of December 2002, have had the curiosity to begin investigating with expert help the cause of his condition, and whether his injury could be considered capable of being attributed to something that the hospital staff did or did not do at the time of his birth.

In relation to the burden of proof on this issue Mr Maskrey drew my attention to a recent decision of the Court of Appeal in Furniss v. Firth Brown Tools Ltd. [2008] EWCA Civ 182, in which Smith LJ, giving the lead judgment, stated at paragraph 27 that the burden of proof under section 14 lies on the Defendant. Mr Westcott pointed to passages in the White Book for 2008 (Volume 1 at 2041(e) and following), referring to other authorities, which suggest that this issue is not entirely straightforward. However, for the purposes of this case, if the legal burden is indeed upon the Defendant throughout, I find on the evidence that they have discharged it.

In relation to the Claimant’s statement that he personally felt mentally unable to look into a claim, after moving into his own flat at the end of November 2002 and whilst he was involved in lengthy disputes with social services, this I accept is an important factor. But this, in my view, is to be regarded as an individual attitude or characteristic of this Claimant, which therefore falls to be considered under section 33, rather than section 14. For the reasons given above this Claimant, in my judgment, had constructive knowledge of attributability by the end of December 2002 and his claim is therefore statute barred unless it can be saved by section 33.

The relevant statutory provisions are as follows:

“s.33 Discretionary exclusion of time limit for actions in respect of personal injuries

It is agreed that pursuant to section 33(1) the fundamental question is whether I consider that it would be equitable to allow this action to proceed, having regard to the degree to which (a) the provisions of section 11 prejudice the Claimant; and (b) a decision to allow the Claim to proceed would prejudice the Defendants. It is also agreed that pursuant to section 33(3), in arriving at my decision under section 33(1), I must have regard to all the circumstances of the case and, in particular, to each of those matters listed in sub-section (3). The question is not determined, however, simply by assessing comparative scales of hardship. The overall question in my judgment is one of equity, namely whether it would be equitable to disapply the limitation provisions having regard to the balance of potential prejudice in all the circumstances of the case.

The starting point in this case is that the claim, notionally issued on 6 March 2006, is statute-barred. The Claimant’s date of constructive knowledge, for the purposes of sections 11 and 14 of the Act, I have found to be at or around the end of December 2002.

The burden of showing that, in the particular circumstances of the case, it would be equitable to disapply the limitation provisions lies upon the Claimant. The nature of the discretion has been the subject of some debate over the years, but it has most recently been considered by the House of Lords in Horton v. Sadler and Another [2007] 1 AC 307 and A v. Hoare [2008] UKHL 6.

In Horton, in which the House departed from its previous decision in Walkley v. Precision Forgings Ltd [1979] 1 WLR 606, Lord Bingham reviewed the development of limitation in personal injury actions generally. He observed at paragraph 9 that the Court of Appeal in Firman v. Ellis [1978] QB 886, had held that section 2D (the predecessor to section 33) was a “revolutionary step” which had given the Court a “wide general discretion” and that judicial fetters should not be imposed on this new and valuable discretionary power. Further, the House of Lords had held that this was the correct approach in Thompson v. Brown [1981] 1 WLR 744 (see Horton at paragraph 17H).

Confirming that section 33 conferred a wide and unfettered discretion Lord Bingham said as follows at paragraph 32:

“32 In resolving an application under section 33 the court must make a decision of which the inevitable effect is either to deprive the defendant of an accrued statute-bar defence or to stifle the claimant’s action against the tortfeasor who caused his personal injuries. In choosing between these outcomes the court must be guided by what appears to it to be equitable, which I take to mean no more (but also no less) than fair, and it must have regard to all the circumstances of the case and in particular the six matters listed in subsection (3).”

The unfettered nature of the section 33 discretion was then restated in Hoare where, in the context of historic abuse allegations and delay, Lord Hoffmann, Baroness Hale and Lord Brown all emphasised the unfettered nature of the discretion under section 33, and the need for the judge to look at the matter broadly and consider whether or not it will be possible for Defendants to investigate allegations and whether a fair trial will still be possible; or, as Lord Brown expressed it, whether there is “a reasonable prospect of a fair trial” (see paragraph 86). As Baroness Hale observed: “a fair trial can be possible long after the event and sometimes the law has no choice….Much will depend upon the circumstances of the particular case.”

At paragraph 49, Lord Hoffmann said as follows:

“In Horton v Sadler [2007] 1 AC 307 the House rejected a submission that section 33 should be confined to a “residual class of cases”, as was anticipated by the 20^th Report of the Law Reform Committee (Cmnd 5630) (1974) at para 56. It reaffirmed the decision of the Court of Appeal in Firman v Ellis [1978] QB 886, holding that the discretion is unfettered. The judge is expressly enjoined by subsection (3)(a) to have regard to the reasons for delay and in my opinion this requires him to give due weight to evidence, such as there was in this case, that the claimant was for practical purposes disabled from commencing proceedings by the psychological injuries which he had suffered.”

In relation to the nature of the burden of proof on a Claimant Mr Westcott placed reliance on KR and Others v Bryn Alyn Community (Holdings) Ltd. and Royal and Sun Alliance Plc [2003] Lloyd’s LR 175, and on a passage in the judgment of Auld LJ, giving the judgment of the Court, in which, at paragraph 74(ii), he said:

“(ii)

The burden of showing that it would be equitable to disapply the limitation period lies on the claimant and it is a heavy burden. Another way of putting it is that it is an exceptional indulgence to a claimant, to be granted only where equity between the parties demands it;”

In my judgment, however, this particular passage in Bryn Alyn no longer sits happily with the subsequent House of Lords decisions in Horton and Hoare as to the approach now to be adopted in exercising the wholly unfettered discretion under this section. Whilst section 33 obviously provides an exception to the general rule, that does not mean that the exercise of the discretion in a Claimant’s favour is to be viewed as an “exceptional indulgence” and it is, with respect, unhelpful now to describe it in such terms. As it seems to me the nature of the burden upon a Claimant will depend upon the strength or the weakness of the evidence available.

In view of the issues to be considered it is necessary to describe first the nature of the substantive claim and of the defence to it, together with the procedural history, in order that the parties’ submissions may be properly understood.

The Claimant’s pleaded case (see the summary at paragraphs 15 – 23 of the Particulars of Claim) is that he suffered a period of profound asphyxiation at around the time of his birth and that the combination of pre and post delivery under-perfusion (a period of about 15 to 20 minutes) caused the brain injury resulting in athetoid cerebral palsy from which he now suffers.

The Claimant was delivered by emergency caesarean section at 21.25 hours on 18 June. It is admitted at paragraph 10 of the Defence that, had he been delivered at or before 21.20 hours he probably would not have sustained brain injury.

In relation to breach of duty the Claimant’s case essentially is that, although the labour was progressing normally prior to 19.30 hours, the fetal head was not engaged and progress was slow, thereby indicating a need for close monitoring. Between 19.30 hours and 20.15 hours the CTG trace was recording mixed Type I and Type II decelerations (now referred to as variable decelerations) in the fetal heart rate. These were probably caused by intermittent compression of the umbilical cord, were indicative of hypoxia and would and should have been recognised in 1981 as being indicative of hypoxia.

The CTG trace has not been found, despite extensive searches, but relying on contemporaneous entries in the clinical records the Claimant contends that these variable decelerations probably continued after 20.15 hours and that the trace did not revert to normal before 21.00 hours. There was a deep deceleration from a baseline of 140 bpm to 90 bpm at 21.00 hours, probably provoked by the recommencement of Syntocinon infusion, and another at 21.10 hours, when the Syntocinon was slowed.

An obstetrician was called and arrived at about 21.00 hours (it is admitted that an obstetrician was there at 20.55 hours – see paragraph 12.5 of the Defence). A vaginal examination was carried out, which revealed that the Claimant’s mother was 9 cm (and therefore not fully) dilated. Notwithstanding that the head was not engaged, a decision was made to attempt vaginal delivery in theatre by Ventouse extraction, which failed, as did the subsequent attempt at forceps delivery. At approximately 21.15 hours, when the fetal heart was recorded as 90 bpm, the decision was taken to deliver by emergency caesarean section and delivery was achieved at 21.25 hours.

The Claimant’s case is that the persistent, variable decelerations from 19.30 hours should have led to the decision to deliver by caesarean section well before 21.00 hours, in which case the Claimant would have been delivered intact before 21.20 hours. Further, the attempts at vaginal delivery by Ventouse and then by forceps were misconceived, given incomplete dilatation and the fact that the head was not engaged, and caused unnecessary delay. Whilst the operation note records that the fetal head was engaged (being at the level of the ischial spines) this is improbable in the circumstances. Finally, the Syntocinon infusion should not have been restarted given the evidence of fetal hypoxia. This probably provoked the deep deceleration at 21.00 hours and contributed to an earlier circulatory collapse.

In their Defence the allegations of breach of duty are all denied and a detailed response to the individual allegations of breach of duty, including a positive case as to the management of this labour, is pleaded at paragraphs 12.1 – 12.9. In summary, the Defendants contend that in 1981 it was acceptable for the attending obstetricians to conclude, upon observation, that the regularity, strength or duration of the Claimant’s contractions could be improved by the administration of Syntocinon to assist with vaginal delivery, and that the conditions for responsible recommencement of Syntocinon were in place at 21.00 hours. It was not necessary for the CTG to have returned to complete normality in order for recommencement of Syntocinon to have been reasonable; and at 21.10 auscultation of the fetal heart by sonicaid showed it to be 130 bpm and regular. There were probably no late decelerations until the attempts at vaginal delivery, by which time the fetal head was engaged and the attempts were consistent with respectable contemporary practice. Further, the decision to deliver by caesarean section was made expeditiously when it was appreciated that the attempts at vaginal delivery would not succeed and had provoked fetal distress. It is denied that there was any negligent delay in the delivery of the Claimant.

The Claimant first contacted Irwin Mitchell on 17 February 2004. He was visited at home on 16 March 2004, when basic instructions were taken, the Claimant typing on his computer keyboard with his nose. His mother was seen on 25 March 2004 but was unable to provide much information as to the circumstances surrounding his birth. A Form of Authority was signed to enable the solicitors to gain access to her medical records.

Initial difficulties applying for public funding were overcome when the LSC agreed to accept an automatic signature “drawn” on the computer, which the Claimant then arranged. A Certificate for investigative assistance was then issued on 3 June 2004.

Applications for copies of the relevant medical records were submitted between June and August 2004 once the relevant Forms of Authority were received. The matter was referred to the Defendants’ solicitors, Hempsons, in August 2004, in relation to the request for disclosure, and copies of the medical records, though not including the CTG trace, were disclosed in August and September and sent for organisation and pagination in November 2004, pending a search for the CTG. The missing CTG was then chased with Hempsons in a series of letters sent between November 2004 and April 2005, before Hempsons responded on 4 May 2005 saying that the CTG could not be located. Further correspondence from Irwin Mitchell raised the possibility that the trace may have been mis-filed and asked for further searches and a witness statement to be provided as to the results. Chaser letters were sent on 29 July and again on 7 September 2005. On 24 October Hempsons responded with the information that 27 other children were born on the ward between 17 – 19 June 1981. The records for these children had been searched, save for three children whose notes were also missing, and the CTG for the Claimant had not been found. It seems that the records of patients with the surname “Khairule” had also been checked, without success. No further queries were raised thereafter.

The paginated medical records were returned to Irwin Mitchell in January 2005 and analysed on 18 January. Letters of approach were then sent to a consultant obstetrician and paediatric neurologist on 21 January 2005. Formal instructions, seeking his report on breach of duty, were sent to the consultant obstetrician, Mr. Jarvis, on 28 February 2005. Anticipating the time it was likely to take for a full report to be received, a consultation with specialist leading counsel (Mr. Maskrey) was booked for 1 December 2005, to avoid any difficulty with limited availability at a later date.

Difficulties were encountered in finding a paediatric neurologist able to accept instructions to prepare a report on causation before the typical waiting period of 12 – 18 months, given the consultation fixed for the 1 December. Professor Levene ultimately agreed to report within the required timescale and instructions were sent to him on 11 May 2005.

Following the letter of 24 October 2005 from Hemspons, re their failure to find the CTG, Sara Burns of Irwin Mitchell informed Mr. Jarvis, who agreed to finalise his report without it. His report was received at Irwins’ offices on 21 November 2005, by which time Professor Levene’s report was also available. They were both supportive of the Claimant’s claim. Ms. Burns emailed the Claimant on the same day informing him that the medical experts were of the view that he ought to have been delivered sooner than he was and that, if that had happened, his brain injury would have been avoided.

The consultation with leading counsel then proceeded on 1 December, when the Claimant was advised that allegations of negligence and a causal injury had been identified and that he did therefore have a valid claim against the Defendants. Ms. Callaghan of Hempsons wrote on 6 January 2006 asking if the file could be closed. Irwins responded that a case conference had been held and that further information was being sought, with a view to a letter of claim “in the next month or so”. Hempsons requested informal details of the likely allegations by letter of 26 January 2006 but received no response. The Letter of Claim was then drafted and was served on 6 March 2006, the agreed notional date of issue of the claim.

In her witness statement Ms. Callaghan states at paragraph 10 that, once the Letter of Claim was received, she was able to identify and locate 6 of the factual witnesses identified in the hospital records to address the main issues. Others are apparently still being located. Experts on breach of duty and causation “were instructed quickly and fortunately reported quickly”. The Defendants were able to serve a formal response to the allegations, in accordance with the protocol, on 28 June 2006, rebutting the allegations of breach of duty and responding to the Claimant’s case on causation.

The parties’ respective cases now appear fully from the detailed sets of pleadings, to which I have already referred.

Section 33(3)(a): Delay

In fact the length of the delay in this case, given my findings as to the Claimant’s date of knowledge, is no more than 3 months until the agreed notional date of issue of proceedings and some 7 months before their actual issue. But in relation to the reasons for delay generally Mr. Maskrey relies upon those particular characteristics and general circumstances relating to this Claimant, which include any matters which could not be considered under section 14. He therefore refers to the severity of his disability, the Claimant’s acute and time-consuming communication difficulties, his disputes with social services, as he sought to secure adequate care and funding, his social isolation and the absence of family support, all of which are evidenced in the documentation and continued throughout 2003. All these factors had the effect that the Claimant was ground down by the effort required simply to enable him to achieve autonomy and secure a stable, daily existence. In consequence he felt mentally unable to cope with any additional investigations and therefore had no proper opportunity to pursue a claim until late 2003, when matters had settled a little and he had achieved some stability, and when he first began to make enquiries.

Mr. Westcott acknowledges that all these factors come into play under section 33, but he submits, essentially, that the positive aspects of the Claimant’s character, such as confidence, intelligence, determination and perseverance, all combine to counter the proposition that he had no time and no real chance to pursue a claim before he embarked on enquiries in late 2003.

I find Mr. Maskrey’s submissions to be the more persuasive on the evidence, in relation to events between January 2003 and February 2004, when the Claimant first contacted Irwin Mitchell. Whilst the Claimant’s persistence and stoicism are indeed positive characteristics, in my view they can tend to mask the reality of his daily life, in particular after he left college. The delay of just over a year, before he sought advice and his solicitors began to investigate the claim on his behalf, was undoubtedly caused by the Claimant’s decision to direct all his efforts, against difficult odds, to live independently in the community and to secure the means to do so; and I rely in particular on the observations of Councillor Heather Parker and of Professor McLellan set out above in this respect. The severity of his physical disability and his inability to communicate with others, save through a tiring and cumbersome process, render his concentration on his everyday needs throughout this period understandable in the circumstances.

There are no further criticisms made of delay by the Claimant once Irwin Mitchell were acting on his behalf; and no real criticism of delay by his solicitors between February 2004 and the date of issue of proceedings in July 2006 or subsequently. In my view the documents show that matters have been dealt with in an orderly and appropriate way and the correspondence shows regular activity on the Claimant’s behalf since the solicitors were first instructed. It was plainly sensible to pursue other possible avenues for locating the CTG, as Mr. Westcott fairly accepts, and to await these results before asking Mr. Jarvis to complete his report on breach of duty. The time taken for the experts to provide their reports was well within the period to be expected, given the nature and complexity of the issues, and the other demands on the time of busy experts. There was some slight, unexplained delay between the consultation with leading counsel on 1 December 2005 and the formal Letter of Claim to Hempsons dated 6 March 2006 but this was not criticised expressly by Mr. Westcott and is, in my view, of no real significance having regard to the overall length of time between January 2003 and March 2006. Mr. Westcott’s submissions as to delay were directed more to the overall passage of time since 1981 and the prejudice caused to the Defendants as a result, to which I shall return below.

Section 33(3) (c), (e) and (f)

Section 33(3)(b): Cogency

In this regard Mr. Westcott identifies what he describes as “incremental problems” caused by this further delay, which are spelt out by Ms. Callaghan at paragraphs 29 and 30 of her statement. The Defendants, she states, must rely in this case on factual witness evidence and staff recollections of practice and procedure in 1981 in defence of the allegations. The nature of midwifery and obstetric care in 1981 means that the contemporaneous notes are not in the same, continuous form to be found in current practice. This claim is now very stale and “…it would be wrong to assume that additional years, beyond the 21 provided by the Limitation Act, do not cause additional problems for ageing midwives and doctors nearing or in their retirement, both in their recollections and ability to assist the Court to complete the factual picture.” Ms Callaghan refers to the intention, at present, to call six factual witnesses identified in the records and states that,

“Of the six already assisting with this case four remain employed in the NHS in a clinical setting, albeit that only one of those continues in the same specialty as he was in at the time of the Claimant’s birth. Of the other three, Mrs. Erica Hamer, former midwife, retired in July 2006; Dr. Khin Zaw, former Associate Specialist in Obstetrics and Gynaecology, retired from obstetric practice around the year 2000 and from all practice in November 2006 and Mrs. Patricia Tetlow, former midwife, retired in 2005. If the claim had issued in 2002, these three witnesses would have been in practice for the duration of this claim, instead of dealing with complex litigation and defending very detailed challenges to their professional conduct and former specialist management in their retirement. The prejudice caused by delay, to those who are facing the alleged breaches of duty, should be taken into account. Isolation in retirement from empathising colleagues and the lack of clinical employment can prevent the claims they face being put into perspective, added to by the frustration of constantly trying to remember events and practice and retain what they have been able to contribute to the evidence in the case.”

Mr. Westcott referred to these people in his submissions as “ageing witnesses with the Damoclean sword of prejudice hanging over them”, and in respect of whom there is a reducing facility to discuss and debate clinical issues and increasing stress, together with an increasing risk of their unavailability at trial. The main difficulties relate, he submits, to the unpicking of the details in the notes.

The main problem with these submissions is a lack of any evidence to support them from the “ageing witnesses” themselves. None has provided a statement indicating that isolation in retirement or frustration in trying to retain what they have contributed is currently prejudicing them or will prejudice them in this particular way in future. Whilst I am prepared to recognise, without evidence, some general prejudice, in the sense that the commencement of this claim in 2006 is both worrying and disappointing and no doubt highly inconvenient to them, Mr. Westcott puts it too high in my view in referring to the “Damoclean sword” hanging over them, without any evidence of prejudice of the kind alleged from the witnesses themselves. It is in my view, inappropriate to make generalised assumptions as to isolation in retirement or an inability to “retain what they have been able to contribute” without evidence in support of such a suggestion. They would doubtless prefer not to have to deal with the allegations now made, but Ms. Callaghan’s statement, without more, does not assist me as to cogency, either under paragraph (b) or more generally.

Further, it is in my view significant that there is no evidence from any of the factual witnesses referred to that the further delay, from the end of the limitation period, means that they are now no longer able to recall facts and details that they could recall before that date; or setting out any particular difficulties or prejudice in that respect. Paragraphs 7 to 9.22 of the Defence contain a detailed, factual account of the management of this labour and delivery. Save for an admission that the notes and records “are not accurate in every respect” there is nothing (save for the CTG which I deal with below) to indicate any difficulties in recollection, which now prevent the preparation of a chronology or the pleading of a factual account as to what actually occurred. On the contrary, the positive account pleaded in the Defence, in response to the Claimant’s allegations, must have been based on instructions.

The reality, no doubt, is that the factual witnesses will rely at trial upon both the contents of the hospital records and what was then their usual practice. Forensic experience recognises this as standard territory for clinical negligence disputes, and this would have been the position even if the Claimant’s claim was not statute-barred. The Courts are well used to dealing with these cases on that basis, even in birth injury claims brought by adults many years later, though within the primary limitation period; and there is no evidence before me which shows any particular evidential difficulty arising for any of these witnesses in this respect, as a result of the delay since the limitation period expired.

I recognise, of course, that this is a case in which the CTG trace has been lost. However, I agree with Mr. Maskrey that there is no evidence to show when it was lost and Mr. Westcott accepts this. The loss of the CTG therefore falls to be considered, not under paragraph (b) but in relation to the overall lapse of time, the possibility of a fair trial and general prejudice, to which I now turn.

The Balance of Prejudice

He contends, in relation to the effects of the passage of time, that there are always problems in stale cases such as these, even when they are brought within the limitation period. The Court should therefore have regard to the whole of the period that has elapsed in this case in considering the prejudice caused to the Defendants in having to deal with it. Mr. Maskrey submits that, since Parliament has legislated to allow stale claims, where the cause of action accrued many years ago, the fact that the claim relates to an injury sustained many years ago is of limited relevance and can be considered only by way of background against which any prejudice arising after the limitation period is to be judged.

In my view the crucial question in cases such as these, when considering the effects of the passage of time generally and the section 33 discretion, is whether it is still possible to have a fair trial of the issues on the available evidence. Of relevance to this question will be when the Defendants first had knowledge of the claim and the opportunity they have had to investigate it and secure relevant evidence, and can prepare to meet it at trial.

It is therefore important to consider, in this case, the availability of contemporaneous documentary evidence; the availability of relevant factual witnesses and the extent to which they are able to deal with the allegations; and the extent to which the independent medical experts instructed are able to consider standards of midwifery and obstetric practice as they were many years ago, rather than as they are now.

The evidence relied upon by the Defendants, set out in Ms. Callaghan’s statement, refers firstly to difficulties caused for the factual witnesses in retirement, to which I have already referred above, and I do not repeat those assertions here, or my assessment of their value in balancing prejudice.

She also refers, at paragraph 29, to there being “two very different sets of factual assertions about the timing and order of events contended for in the respective pleadings”, which the factual witnesses must address given the lack of detailed, contemporaneous notes. At paragraph 31 she states as follows in relation to the CTG trace:

“Furthermore, the CTG trace is no longer available. The pattern of the fetal heart recorded on the CTG trace can be determinative in cases of birth injury. Whilst the parties’ experts have made assumptions about what the trace was depicting at certain times, based on the available notes, brief descriptions of a snapshot, or a period, of tracing cannot provide the full picture, upon which management decision would have been based. In this context the Defendant relies on the disclosed report of Mr. Thomas.”

An analysis of the pleaded cases does not, firstly, indicate to me that there are irreconcilable factual accounts, which cannot be satisfactorily addressed on the evidence in the usual way. The essential factual disputes between the parties seem to me to be the following: what the missing CTG probably showed during the relevant period; what the baby’s presentation and position were at the time that vaginal delivery was attempted, i e whether the head was engaged and the cervix fully dilated; and what was probably happening to the fetal heart after 21.00 hours when two decelerations are recorded.

Mr. Jarvis, at pages 2 – 4 of his report, says as follows:

“Whilst it would of course have been ideal to have the CTG, there is in fact very helpful information within the labour record concerning fetal heart rates at the appropriate times. This information could be summarised as:-

1900 hours 152 bpm and regular.

1930

Type I dips.

? time Mixed type I and type II (decelerations).

(after 1930 and before 2015)

2015

Type II dips.

2100

Fetal heart rate 140 bpm reducing to 90.

2110

Fetal heart rate 130 bpm reducing to 90.

2115

Fetal heart rate 130 bpm reducing to 90.

Mr. Thomas includes amongst the documents to which he has had access, in order to attempt a reconstruction of events, “Statements from a number of clinicians and midwives involved”. These have not been disclosed but this indicates that some, at least, of the relevant factual witnesses have been able to provide statements dealing with the management of this labour, to which Mr. Thomas has referred in arriving at his conclusions.

At pages 4 – 5 of his report, he made the following observations:

“• It is usually reasonably easy to develop from clinical records a reconstruction of events or a chronology and a list of assumed facts. Unfortunately clinical records are often maintained at times of intense clinical activity involving several different professionals so that, often, for instance, the times written in the margin are not precise or the comments written are not in chronological order or they fail to correlate precisely with comments written on the CTG. Of all the documents the CTG is usually the best time-keeper. Whilst it is usually easy to develop an assumed re-construction of events it is not easy, without all of the witness evidence and without the CTG, to develop a reconstruction which is necessarily the right one.

• I think it would be fair to say that examination of the witness evidence in this case will make considerable difference to the reconstruction of events and will make made fine tuning of the reconstruction considerably easier than depending on the records alone.

The relative experience of the personnel involved and the hospital practice and procedures of the time will become much clearer in the light of defendant witness statements.

• With regard to the absence of a CTG it is my experience that a written description of a CTG is never anything like as accurate as examination of the original document or a continuous copy of the same.

It is not possible to say whether the CTG would be determinative of this case but it would certainly lead to a more accurate reconstruction of events and a better assessment of the appropriateness of reaction to abnormality.

• The reliability of witness evidence must be viewed with some circumspection given that the case took place in 1981. Although, in general, a Claimant is likely to say to the contrary, it is difficult for a Claimant to report reliably events which were not recorded by him or her at the time of those events.

Similarly it is difficult for Defence Witnesses to recall individual cases simply from memory. However, the style of a professional in recording events tends to remain the same throughout a career and it is my experience that witnesses going back to notes can be depended upon to produce a reasonably reliable account with the knowledge of their own professional performance and the record that they made at the time.”

Whilst Mr. Thomas rightly recognises the difficulties caused by the absence of the CTG, these passages do not, in my view, suggest insuperable difficulties in dealing with the likely course of this labour and reconstructing what probably occurred, based on the information preserved in the records and on the recollections of witnesses who can “generally be depended upon to produce a reasonably reliable account” having regard to their knowledge of their own practice and to records made at the time. No-one suggests that the Claimant’s mother will be able to provide any useful evidence in this case. Neither expert has highlighted any particular difficulties in addressing obstetric standards in the early 1980s beyond the normal difficulties in recall which would arise in any event, if the claim had been commenced before 18 June 2002, and which the court is used to dealing with in such cases.

The preponderance of the expert evidence suggests that the matters of factual dispute in this case are capable of being resolved on the available material, with the assistance of the witnesses and reconstructions by the medical experts. The absence of the CTG is, naturally, unfortunate but, with some forensic experience to call upon in this field, the courts in my view are used to dealing with birth injury cases where the CTG is missing, either in whole or in part, or where its presence is not as helpful as might be hoped due to failures in the time-keeping mechanism. I am not persuaded that the passage of time generally, fading recollections or the absence of the CTG are, in this case, factors which can be said to be such as to prevent a fair trial of the issues.

Whilst the Defendants were not notified of this claim until March 2006, they were clearly on notice of a potential claim as from August 2004. Since being formally notified in 2006 Ms. Callaghan states that she has been able to identify and locate 6 of the factual witnesses, some of whom at least have been able to address the main issues and have provided statements. Experts on breach of duty and causation have been instructed and have reported quickly. The Defendants therefore appear to have been able to investigate this claim, notwithstanding its age; and they were able to respond in detail under the protocol and to settle a detailed Defence.

In relation to the merits of the claim, Ms. Callaghan’s evidence is that the clinical notes “demonstrate the Claimant’s claim to be ill-founded”. She states that it is a central contention of his case that his head was not engaged at the time of his attempted delivery, but that the clinical notes reveal that:

“(a)

on examination at a little after 20.40 the presenting part was at the ischial spines – Defence paragraph 9.11;

(b)

at a further examination after 21.00 the presentation of the fetal head at the ischial spines was confirmed – Defence paragraph 9.16.”

In his oral submissions Mr. Westcott developed these points, undertaking a close and sophisticated analysis of the respective, pleaded cases with a view to persuading me as to the weakness of the claim. In essence he drew my attention to the absence of any record of abnormality of the fetal heart in the relevant period, such as could justify any inference of continuing abnormality and need for caesarean section, as the Claimant suggests. In any event a decision at 20.55 to deliver by caesarean section would not have led to an earlier delivery of the Claimant. He submits, further, that it is clear on the evidence that the fetal head was engaged at the time that instrumental delivery was attempted and that, had delivery been achievable, that would have been the preferable mode of delivery at that time. The restarting of the Syntocinon infusion is, he argues, a makeweight point and cannot reasonably be said in any event to have caused the collapse of the fetal heart rate, as alleged.

Whilst recognising that it is not possible to try the breach of duty issue on a summary basis Ms. Callaghan observes that, if this is a weak claim, then the usual balancing of prejudice, namely “in all, or nearly all, cases the prejudice to the plaintiff by the operation of the relevant limitation provision and the prejudice which would result to the Defendant if the relevant provision were disapplied will be equal and opposite” (see Hartley v Birmingham City District Council [1992] 1 WLR 968) will not apply because of the additional prejudice suffered by Defendants likely to be involved in even the successful defence of a claim by a publicly funded Claimant.”

The main problem with Mr. Westcott’s analysis of the respective pleaded cases, in my view, is that it did effectively amount to an attempt to try breach of duty on a summary basis. The courts will always be alive to the prejudice caused to Defendants in having to respond to claims shown to have little merit, especially where the claim relates to incidents which occurred many years ago. However, it is in my judgment inappropriate in this case to attempt to form a view as to the merits in the absence of expert assistance, upon which the Claimant’s pleaded case is proceeding, supported by public funds, and when there are factual disputes relating to those matters upon which Mr. Westcott relies. Whether the fetal head was in fact engaged, the nature of variable decelerations or late decelerations and the likely pattern in the present case, the effect of Syntocinon, and the time taken from decision to delivery time for sections, in that hospital at that time, are all matters upon which evidence, including expert evidence is required, before a conclusion can be reached. I am not persuaded on the evidence before me that this claim can properly be categorised as one in which an impecunious claimant is pursuing a poor case lacking in merit. This in my view is not a relevant factor to weigh in the balance against the Claimant under section 33.

I have revisited and carefully considered the various factors set out above. Having regard both to those matters listed under section 33(3) and to all the circumstances generally, I have arrived at a clear view that, in balancing the prejudice to the Claimant and to these Defendants, the circumstances weigh firmly in favour of the Claimant. The Defendants, though not notified of the claim until 2004, have been able to investigate the claim and, for the reasons I have given, a fair trial of the issues in this case is possible. In the circumstances I find that the Claimant has discharged the burden upon him of satisfying me on all the available evidence that it would be equitable to disapply the limitation period in this case and to allow the claim to proceed.