Whiston v London Strategic Health Authority

The Claimant, Mr Julius Whiston, is now 34 years of age, having been born on 6 September 1974 in Queen Charlotte’s Hospital. He is claiming damages in respect of cerebral palsy incurred through hypoxia around the time of his birth, although the claim was first notified by letter on 23 August 2006. The proceedings followed shortly after, on 17 October of that year. Not surprisingly, therefore, there are issues as to limitation which I am required to resolve by way of preliminary issue.

The issues to be addressed are whether the Claimant’s relevant knowledge arose after 17 October 2003 and, if not, whether the court should exercise its discretion under s.33 of the Limitation Act 1980 so as to disapply the statutory time limit.

The Claimant’s case is that he did not acquire the relevant knowledge until November 2005, when he was 31 years of age. It is suggested that this was the first time his mother (herself a trained midwife) had imparted to him her belief, or at least suspicion, that his cerebral palsy was caused by medical negligence. She told him that a junior doctor (now known to be Mr Breeson) had attempted unsuccessfully to effect a forceps delivery for a period of about half an hour without having resort to a senior member of the team (i.e. Dr Sims, who was a registrar at the time, and who ultimately delivered the Claimant). Until November 2005, it is said, the Claimant had merely thought that his disability arising from the circumstances of his birth was “just one of those things”.

It is now accepted, although it apparently remained in issue until the morning of the trial, that the Claimant was aware that his disability was “significant” (within the meaning of the Limitation Act). What remains in issue is when he acquired knowledge, actual or constructive, that the disability might possibly be attributable to acts or omissions by medical staff at the time of his birth. It is the submission of Mr de Navarro QC, appearing for the Defendant, that the Claimant himself had actual knowledge many years before October 2003, in the light of the evidence placed before the court, and accordingly he relies upon constructive knowledge only as an alternative. If it comes to it, and the court arrives at the stage of exercising the s.33 discretion, he submits that the balance of prejudice lies to the Defendant’s disadvantage and the statutory time limit should not be disapplied.

The statutory limitation regime provides that the Claimant’s action should not be brought after the expiration of three years from the date of his 18^th birthday, or from his date of relevant knowledge, if later. That is naturally subject to the court’s power to disapply in accordance with s.33. Thus, the expiry of the primary limitation period occurred on 6 September 1995 unless the evidence demonstrates that the relevant factors only came to his knowledge at some later date.

There was some debate as to the burden of proof. It seems to be accepted that the burden lies upon the Claimant so far as actual knowledge is concerned. Rather curiously, however, the authorities are less than clear when it comes to the matter of constructive knowledge. Mr de Navarro argues that there is no logical reason, or consideration of public policy, which would justify having the burden of proof placed upon the Defendant in relation to constructive knowledge. My attention was drawn in this context to Nash v Eli Lilly & Co [1993] 1 WLR 782, 796; Crocker v British Coal Corp [1996] 29 BMLR 159, 172-3 and 175; and Furniss v Firth Brown Tools Ltd [2008] EWCA Civ 182. I was invited to follow the reasoning of Mance J (as he then was) in Crocker on the basis that the later Court of Appeal decision in Furniss proceeded on a concession on the defendant’s part and in the absence of any citation of the other authorities to which I have referred. Although I do not believe it critical to rule on the matter, since the case will not turn upon the burden of proof, I record that I accept for present purposes Mr de Navarro’s invitation and will proceed on the assumption that the burden lies upon the Claimant, both in respect of constructive and actual knowledge.

The definition of knowledge for the purposes of ss.11 and 12 of the Limitation Act is to be found in s.14. The relevant date is that on which the person first had knowledge of the following facts: namely, (a) that the injury in question was significant and (b) that it was attributable in whole or in part to the act or omission which is alleged to constitute the negligence or breach of duty relied upon. It is irrelevant whether or not the Claimant knew that any of those acts or omissions did or did not, as a matter of law, involve negligence or breach of duty.

I have recorded the fact that no issue is raised as to the “significance” of the injury. The statutory provision relevant for this purpose is contained in s.14(2), which provides that an injury is significant if the person concerned 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.

Constructive knowledge is defined by reference to s.14(3). I am concerned with knowledge that the Claimant 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. There is the added gloss that a person is not necessarily to be fixed with knowledge of a fact which is 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.

The test is an objective one. I must judge by reference to a reasonable person in the circumstances of this Claimant, with a comparable level of disability, and consider when such a person would have had the curiosity to begin investigating (if necessary with expert help) whether his injury could be considered capable of being attributed to an act or omission of the hospital staff at the time of his birth. It is well settled that personal characteristics, individual to the Claimant, are to be disregarded save in so far as they are directly attributable themselves to the injury in question.

I was invited by Mr Havers QC, appearing on the Claimant’s behalf, to have in mind the summary of the principles contained in the recent judgment of Cox J in Khairule v North West Strategic Health Authority [2008] EWHC 1537 (QB) and specifically at [49]–[58]. Although her Ladyship there appears to embrace comparable intellect when identifying the characteristics attaching to the notional reasonable person, it may well be that intellectual ability is a personal quality – to be left out of account when making an objective assessment for the purpose of s.14(3): see e.g. McCoubrey v Ministry of Defence [2007] 1 WLR 1544, 1555 at [50] and [52], per Neuberger LJ. With regard to the Claimant’s intellect, it is worthy of note that he has achieved a great deal in life, notwithstanding his disability. He was, for example, a King’s Scholar at Eton College and later graduated in mathematics from Pembroke College, Cambridge, where he also obtained a Ph.D.

The marked deterioration in his condition became noticeable in his mid-twenties and he now leads a significantly more restricted life in consequence. As Mr de Navarro points out, however, it is important to have in mind the principle that, if an injury is significant, the fact that the symptoms attributable to it subsequently became worse is irrelevant for present purposes: see e.g. Brooks v J & P Coates (UK) Ltd [1984] 1 All ER 702. The date of knowledge cannot be affected by the fact that the consequences turned out to be more serious than was initially contemplated.

For the purposes of assessing knowledge, Mr Havers submits that the court should focus on the “acts or omissions” as pleaded. In principle, that would appear to be correct. He referred me to the brief particulars of negligence in the present claim, to be found at paragraph 14 of the particulars of claim:

There is a degree of tension here between the need, on the one hand, to focus on the relevant acts or omissions (by reference to the pleadings) and, on the other, the need to remember that it is unnecessary, for the Claimant to be fixed with knowledge, that he should appreciate that the relevant conduct was negligent or otherwise wrongful. This highlights one of the principal disputes between the parties. Mr de Navarro argues that, in order for the court to find knowledge on the Claimant’s part, it would suffice that the evidence discloses his awareness that he underwent a forceps delivery and/or hypoxia shortly beforehand. Mr Havers, by contrast, does not accept that mere knowledge of these factors would equate to his client being conscious of the attributability of his disability to acts or omissions on the part of medical staff; still less, of course, to those relied upon in the particulars of claim.

One of the answers given by the Claimant, through his computer, was that, “I knew my birth was described as a ‘forceps delivery’ but until beginning this case I had no notion of what that meant”. He later added:

“I knew it was from lack of oxygen at birth and if you equate such a thing to an injury then yes. No, I had not thought much about it … I was living what I considered a normal, unrestricted life and was far more focused on my studies and building my future.

I knew that there was lack of oxygen. If you characterise that as something going wrong in a very general sense then yes.”

What the Claimant appears, therefore, to be saying, as I understood also from his witness statement, is that he knew that his disability was linked to the circumstances of his birth; that there had been a forceps delivery; and that he had been deprived of oxygen shortly before that. He did not go on to infer, on the other hand, that any of these circumstances were, or might be, attributable to any act or omission on the part of medical staff. Obviously, if there was a forceps delivery, that would have to be carried out by a doctor or nurse. Yet his state of mind appears to have been that there was something about his circumstances which required a forceps delivery, but without that need in itself being attributable to a member of the medical staff. He does not seem to have made, or thought about, any possible link between the hypoxia and the need for a forceps delivery. He regarded them as neutral data relating to his birth.

It would, of course, be no answer for him to say that he was unaware of fault or negligence. But his case goes beyond that: he says that he did not link these essentially neutral data (i.e. forceps delivery and hypoxia) with any act or omission by a relevant person. In particular, his mother had told him nothing as to her concerns about the role of the relatively junior doctor; nor of the failure to call for the Registrar; nor of the prolonged and unsuccessful attempt to achieve delivery by Simpson’s forceps, as she alleges; nor of the failure to advise the midwives to prepare for an assisted delivery; nor of the proposition now relied upon that he would not have suffered the disability if he had been born by 21:20 hours. These are the acts or omissions “alleged to constitute negligence”, within the meaning of s.14(1)(b).

It is the Defendant’s case, as I have already noted, that the court should find actual knowledge on the Claimant’s part in the light of the combined evidence of himself and his parents. Alternatively, it is said that he knew enough, even from childhood, to justify the commencement of enquiries as to whether his deprivation of oxygen might not be attributable to misjudgement or inactivity on the part of the medical team.

There were witness statements before me, for the purposes of the preliminary issues, from both sides, but the only witnesses who were called for cross-examination at the hearing were the Claimant, his mother Mrs Peng Ong (“Margaret”) Whiston and his father Mr Peter Whiston.

Despite his disability, I found it relatively easy to make an assessment of the Claimant and the straightforward answers he gave through his computer. The evidence of his parents was more problematic. His mother became at times quite voluble at the first hearing on 16 March and, on a number of occasions, appeared not to understand the questions that were being asked. This may have been due to language difficulties or to finding herself in unfamiliar surroundings. The father, who gave evidence much more briefly, was difficult to assess. He was asked particularly about paragraph 6 of his witness statement:

“From time to time Julius asked my wife and I what was the cause of his problems but this was not often as Julius did not see himself as disabled. We told him that his disability was due to the forceps delivery but at no time did either my wife or I discuss with him that we had any concerns about the obstetrician’s expertise.”

Although the Claimant himself had already confirmed by this time that he had been aware of the forceps delivery, his father appeared reluctant to confirm what he had already said in his statement. Indeed, he stated that he could not actually recall ever having discussed the forceps delivery. I am not quite sure why this was, but I prefer to accept the contents of the original statement (cited above) – not least because the Claimant himself accepts that he was aware of the use of forceps.

This seems to have been a remarkably positive household, which made every effort to minimise the Claimant’s disability from childhood and to enable him to lead as “normal” a life as possible. He himself was especially upbeat, not regarding himself as disabled and indeed deciding of his own initiative to apply to Eton. There he declined the services of a personal assistant despite having had one at his previous school. He certainly made the most of his opportunities. Mr de Navarro argues that it was because of this positive attitude that the parents decided not to pursue any legal remedies and to make the best of what they had. That seems to have been true of the parents, but I must have regard in the present context to the state of mind of the Claimant himself. It seems to have been an aspect of Mrs Whiston’s positive approach that she focused on his future rather than on past misfortunes and, for that reason, never voiced to her son her concerns about the standard of medical treatment at the time of his birth.

Mr de Navarro invites me to conclude that it is implausible that she would have kept her concerns to herself – if they were genuine. He did not, in Mr Havers’ phrase, pull any punches. He suggests that the claim has effectively been manufactured, late in the day, when it became apparent that there had been significant deterioration. It is said that the very concerns she now claims to have had at the time, in September 1974, were invented in the hope of achieving compensation for her son. That is a serious allegation which needs to be carefully addressed.

Mr de Navarro asks me to infer that Mrs Whiston’s account of what happened in the hour leading up to the birth, at 10:00 on the evening of 6 September, is incredible (presumably so that I can reject her evidence on the limitation issue). He has to recognise, of course, that I have not heard from either Mr Breeson (then the SHO) or from Mr Sims (then the Registrar), but calls upon judicial knowledge of Queen Charlotte’s and the high standard of its medical staff. He says that it is just incredible to suggest that even a SHO at that establishment would attempt to deliver a baby with Simpson’s forceps at all, let alone for as long as half an hour. Moreover, if he had attempted to do so, the midwives would have stepped in.

Yet, not only has the evidence not been fully developed and tested, but the expert to be called on behalf of the Claimant, Dr Myerscough, actually endorses her scenario as plausibly accounting for the gap in contemporaneous notes between 21:10 and 22:00.

Dr Sims (as he then was) made notes at 22:00 to the effect that Kielland’s forceps had been used and that the delivery had been easy. Yet it is clear from a number of contemporaneous notes that the baby had been in distress and that he was limp and otherwise not in good condition at birth. There was also a significant delay in achieving his first breath. All of that evidence, Dr Myerscough considers, is consistent with Type II decelerations and with hypoxia having occurred between approximately 21:10 and the delivery. It is at least consistent with Mrs Whiston’s evidence and would help to explain the critical 50 minutes gap in the notes during which something must have been going on.

Dr Myerscough also ventures the opinion that there might well not have been available any CTG readings because one would expect Dr Sims to have entered the reading in the notes to give greater precision to the record of distress. Be that as it may, he suggests that there is enough information in the surviving notes to support Type II decelerations. They would go a long way to accounting for the distress and poor condition upon delivery.

That being so, there is evidence to support the complaints of (a) failing to call the Registrar and (b) not warning the midwives to prepare for assisted vaginal delivery at or around 21:20. But more to the point, for present purposes, the evidence suggests that in the Registrar’s absence other ineffective steps were being taken during this period by the SHO (as Mrs Whiston asserts). At all events, I cannot possibly at this preliminary stage come to the robust conclusion advanced by Mr de Navarro that Mrs Whiston’s account of matters can be dismissed as incredible.

Mr de Navarro’s essential submission is that the Claimant has failed to prove that he only acquired actual knowledge within the relevant period (i.e. after 17 October 2003). He submits that it is clear that actual knowledge was acquired by the Claimant well before his 18^th birthday; that is to say, awareness that his cerebral palsy had been caused by brain injury due to lack of oxygen at birth, during a forceps delivery. He submits that this is enough to establish actual knowledge that his injury was capable of being attributed to an act or omission of the medical staff attending his mother and/or carrying out the forceps delivery.

Mr Havers, on the other hand, invites the court to accept that knowledge merely of those matters would not be sufficient: he would also have to know that the injury was attributable, at least partly, to the act(s) or omission(s) alleged to constitute negligence (as defined by the pleading). He does not accept that, in so submitting, he is falling foul of the rule in s.14(1)(c) (i.e. the irrelevance of knowledge as to the legal consequences).

After the case had apparently concluded on 17 March, the Defendant’s advisers obtained additional documents evidencing claims made over the years for disability benefit. Mr de Navarro wished to ask the Claimant and his mother further questions in the light of what they disclosed. The court therefore reassembled for that purpose on 22 April. Both witnesses were further cross-examined by Mr de Navarro but no questions were asked in re-examination.

Essentially, the point Mr de Navarro wished to make in his brief supplemental submissions was that the information contained in the application forms was not consistent with the narrative contained in the witness statements. He suggested that, for the purposes of the present litigation, the severity of the Claimant’s medical condition up to the age of 23 had been significantly understated. It is submitted that the court should regard those documents as giving a truer picture. I am invited to take this into account as being relevant to constructive knowledge and to s.33 reasonableness. Alternatively, if the case was being overstated in the earlier years, as Mrs Whiston appeared to concede, this was a factor which I should take into account as casting considerable doubt upon her credibility. Furthermore, the Claimant, at least by the time he was older (say at 16), appeared to be content to allow his mother to overstate his condition – so that his own credibility was brought into question.

As I have said, the Claimant’s perception of his own limitations, as compared to most other people, is very important in this case. However others may have regarded him (including his parents), the fact remains that he has achieved far more in his life than most able-bodied people. Accordingly, it seems to me entirely plausible that he regarded himself as only mildly affected by the disability which had always been with him. He did his best to ignore it and concentrate on other matters. Largely for this reason, I do not consider that the new documentation goes in any way to undermine the Claimant’s credibility. As far as I can tell, he has been frank throughout his evidence. There was no indication that he was in any way adjusting his evidence to fit in with that of his mother. His answers seemed to me to be spontaneous and quite independent. I accept, on the other hand, that Mr de Navarro’s cross-examination made inroads into the mother’s credibility and her evidence needs to be approached with some caution.

For the purposes of actual knowledge, I accept that the Claimant has discharged the burden of proof and demonstrated that he was not aware of attributability until November 2005. Mere knowledge of hypoxia and of the forceps delivery would not in themselves suffice.

I must next turn to the question of constructive knowledge. Mr Havers characterises the question to be determined as follows:

“When would a reasonable person in the circumstances of this Claimant, suffering from cerebral palsy and with the same level of disability and intellect, 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?”

If I may say so, that seems broadly to be the correct approach. The only qualification I would have, in the light of the remarks of Neuberger LJ in McCoubrey (cited above), would be that “intellect” is a matter which can be taken into account in the context of the s.33 discretion – but not when applying the objective criteria for constructive knowledge.

Mr Havers draws attention to the following matters in particular:

In the light of these considerations, it is submitted on the Claimant’s behalf that the notional “reasonable person”, finding himself in the same circumstances as the Claimant, would not have had any reason to go behind what his mother had always told him or to become curious as to possible acts or omissions by medical staff.

Mr de Navarro suggests that the Claimant could have acquired knowledge from facts ascertainable by him, not least by discussing what his mother knew (or alleges she knew) by the time he was a few months old. He points to the allegations now made by Mrs Whiston (despite the fact that he does not accept that they are genuine) to the following effect:

There is a certain artificiality to these arguments, in the sense that if Mrs Whiston’s account is indeed incredible and/or false, the Claimant would not have been told these things even if he had made enquiries during his youth or early adulthood. Nevertheless, assuming for the moment that Mrs Whiston has given a broadly accurate account in her witness statement of what took place prior to the delivery, the fact remains that these matters were never drawn to the Claimant’s attention, or discussed with him. In this respect, I accept the evidence of the Claimant and Mrs Whiston. I do not find this implausible, especially as they are both clearly people inclined to concentrate on the future rather than dwelling upon the past.

Moreover, despite his sophistication and intelligence, there is no evidence to suggest that the Claimant followed closely newspaper reports about other cerebral palsy claimants recovering damages for negligence. He did not make the leap of assuming, or even apparently suspecting, that cerebral palsy associated with hypoxia would be attributable to acts or omissions on the part of medical staff (as opposed to being simply a misfortune or “one of those things”).

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

I need next, for the sake of completeness, to address the arguments on the exercise of the s.33 discretion. One of the most important questions in this context is likely to be whether, after such a prolonged delay, a fair trial is still possible. Sometimes it transpires that witnesses have become untraceable and/or documents destroyed, so that even in the context of a strong prima facie case against a defendant on the issues of liability and causation, the court will feel bound to refuse in its discretion to allow the case to proceed. (For a recent example see TCD v Harrow Council [2008] EWHC 3048 (QB), a case of historic child abuse.) It is to be noted, however, that this is not the only issue. It is not to be assumed that the court will exercise discretion in favour of a claimant even in circumstances where most relevant records are still available: see e.g. Dobbie v Medway Health Authority [1994] 1 WLR 1234.

On the assumption that there was knowledge on the Claimant’s part prior to October 2003, Mr de Navarro invites the court to exercise its discretion against the Claimant. He prays in aid particularly the following matters:

In the light of these factors, in particular, it is submitted on the Defendant’s behalf that its ability to defend and to be accorded a fair trial has been significantly prejudiced. It may be that experts can draw, or attempt to draw, inferences from the limited contemporaneous records, but there remains the problem as to whether such inferences would be fair in the absence of a complete picture. Furthermore, the absence of the CTG record is particularly important because, submits Mr de Navarro, the information upon it could well have been decisive on central issues.

It is primarily in this context that I need to consider the evidence of Dr Myerscough. He is firmly of the view that a fair trial is still possible in light of the surviving records. On the other hand, it is rather difficult to see how on his analysis such a trial could result in any outcome other than one favourable to the Claimant. He advances a relatively straightforward thesis. That is to say, one can infer that there was an obstetric emergency that should have been apparent from at least 21:10 hours, requiring urgent delivery. Why else was the child in such poor condition? Why did he suffer cerebral palsy? Why was he not delivered earlier? Why are there contemporary notes of fetal distress? Why is there a note of Type II deceleration? What was going on between 21:10 and the simple forceps delivery at 22:00? He infers that there must have been negligence in failing to recognise or react to the crisis with sufficient urgency.

The evidence of Mrs Whiston as to Mr Breeson’s activities does not appear to be essential to Dr Myerscough’s thesis, although he regards it as consistent and as plausibly filling the vacuum between 21:10 and 22:00.

I accept that there is inevitably a piece of the picture missing for lack of CTG, but for the reasons given by Dr Myerscough I do not believe it renders a fair trial impossible. Nor do I consider that the fading of memories is a major factor here. As I have already noted, there is no solid reason for thinking that either Mr Breeson or Mr Sims would have had any significantly better recollection of the events of 1974 if proceedings had been launched in 1992 (when the Claimant attained his majority). Moreover, the nature of Mr Breeson’s case will be simply that Mrs Whiston’s scenario is wholly implausible. That can be developed as effectively as it could 20 or 25 years ago.

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

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

My overall conclusion, therefore, is that the Claimant has demonstrated that he did not acquire the relevant knowledge until 2005. If I were wrong about that, and he had in fact had knowledge at least by the time of his majority, this would not be a case in which it would be equitable to exercise the s.33 discretion in his favour.