The plaintiff had a history of circulatory problems in his legs. He underwent surgery losing his leg. The question was when he should have sought advice as to why an attempted by-pass operation had resulted in one leg having to be amputated. He enquired why only some 10 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 itself 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.
Held: The plaintiff 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. The limitation period begins to run after the Plaintiff has recovered sufficiently to be able to see need to take legal advice. The court applied a wholly objective test, holding that the average patient would have investigated the matter earlier, and doubted that the individual character and intelligence of the plaintiff was relevant to the inquiry: ‘It does not seem to me that the fact that a plaintiff is more trusting, incurious, indolent, resigned or uncomplaining by nature can be a relevant characteristic, since this too undermines any objective approach.’ and ‘In my judgment, a reasonable man in the position of the deceased, who knew that the operation had been unsuccessful, that he had suffered a major injury which would seriously affect his enjoyment of life in the future, would affect his employability on the labour market, if he had any, and would impose substantial burdens on his wife and family in looking after him, if he was minded to make a claim at any time, should and would take advice reasonably promptly.’
Evans LJ: ‘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.’
Stuart-Smith LJ, Evans LJ
Gazette 24-Apr-1996, Times 21-Mar-1996, [1996/7] MLR 175, [1997] QB 402, [1996] EWCA Civ 1318, [1996] 3 WLR 1108, [1996] 7 Med LR 175, [1996] 4 All ER 881
Bailii
Limitation Act 1980 11(1)
England and Wales
Citing:
Doubted – Nash v Eli Lilly and Co CA 1993
The court considered whether a solicitor acting for a potential plaintiff was considered to be an expert for the purposes of the section.
Held: Purchas LJ said: ‘Of course as advice from a solicitor as to the legal consequences of the act or . .
Cited by:
Cited – O’Driscoll v Dudley Health Authority CA 30-Apr-1998
The plaintiff sought damages for the negligence of the respondent in her care at birth. Years later the family concluded that her condition was a result of negligence. They waited until she was 21, when they mistakenly believed that she became an . .
Persuasive – Adams v Bracknell Forest Borough Council HL 17-Jun-2004
A attended the defendant’s schools between 1977 and 1988. He had always experienced difficulties with reading and writing and as an adult found those difficulties to be an impediment in his employment. He believed them to be the cause of the . .
Cited – Smith v Leicestershire Health Authority CA 29-Jan-1998
The plaintiff appealed a finding that she had sufficient knowledge of her possible claim for medical negligence against the defendants, and that she was out of time. She had known of her condition, but said she had no sufficient reason to see that . .
Cited – McCoubrey v Ministry of Defence CA 24-Jan-2007
The defendant appealed a decision allowing a claim to proceed more than ten years after it had been suffered. The claimant’s hearing had been damaged after an officer threw a thunderflash into his trench on an exercise.
Held: The defendant’s . .
Cited – Buckler v J F Finnegan Ltd CA 21-Jun-2004
The claimant sought damages for personal injuries after ingesting asbestos while employed as a joiner by the defendant. The defendant appealed an order allowing the claim to go ahead despite being out of time. . .
Lists of cited by and citing cases may be incomplete.
Limitation, Negligence
Leading Case
Updated: 01 November 2021; Ref: scu.80628