Three years: DAC Beachcroft successfully defends clinical negligence claim on grounds of limitation

Published 4 August 2020

Defending a claim upon limitation grounds is known to be fraught with difficulty. However, in the right circumstances the Limitation Act 1980 can still protect defendants against claims brought out of time.

Here, DAC Beachcroft looks at limitation in the context of a case which was successfully defended at trial. We highlight the key points which can be used as a guide by other defendants when considering whether a limitation defence is likely to succeed.

Limitation: the legal framework

The starting point when considering limitation is that a claim should be brought within 3 years of the index event. However, in many cases that 3 year period will only begin once a claimant has knowledge of the following:

1. their injury was significant;
2. the injury was attributable to an act or omission (whether they know it to have been negligent or not); and
3. the identity of the defendant.

A claimant is deemed to have knowledge if, objectively, one would reasonably expect them to have it.

If a claim is brought outside the 3 year period from the alleged incident, or 3 years from the claimant’s actual or deemed knowledge, then the claimant can still ask the Court to disapply the limitation period exercising its discretion under section 33 of the Limitation Act. Judges have generally taken a sympathetic approach to claimants in this respect especially where the claim appears reasonable and there is no particular evidential prejudice to the defendant in defending the claim out of time. Section 33 contains a non-exhaustive list of factors for judges to consider when balancing the prejudice to the claimant against that of the defendant.

The hurdles that defendants must clear before establishing a limitation defence are high. It is difficult enough to challenge a claimant’s alleged date of knowledge, but then even if successful, they face the prospect of a Judge allowing the claim to proceed in any event as a matter of broad discretion. It is not surprising that, in many cases, defendants with potential limitation defences do not employ them.

Norris -v- Secretary of State for Health (2019)

In Norris, limitation was heard as a preliminary issue before District Judge Grand at the Isle of Wight County Court on 2 October 2019.

The Claimant had undergone an emergency caesarean section in September 2009. Following hospital discharge she developed an abdominal infection, requiring laparotomy. She alleged negligent discharge and that a community midwife had failed to readmit her despite clear signs of infection.

The Claimant alleged her date of knowledge was February 2017, based upon a meeting she attended with hospital staff at which an apology was made. However, she had written a detailed letter of complaint to the hospital in December 2015. Her evidence at trial was that she had blamed herself for her complications and, due to her psychological issues and difficult personal circumstances, had not considered that the hospital might be at fault until a new partner had suggested it to her and encouraged her to complain. She accepted that the list of complaints detailed in her letter to the hospital in December 2015 were concerns she had held since 2009.

Liability was denied by the Secretary of State for Health (which inherited the claim given that it related to treatment provided by a now obsolete Primary Care Trust) on the basis of supportive expert evidence. Matters were complicated by the fact that the clinician against whom many of the allegations of negligence were directed had died after the expiry of the limitation period put forward by the Defendant. In addition, none of the clinicians who had treated the Claimant prior to discharge remained employed by the hospital and those that could be traced had any memory of the Claimant. In addition, a crucial section of the Claimant’s notes were unavailable.

District Judge Grand found that the Claimant had an actual date of knowledge of February 2011 allowing a 15 month extension to take account of the Claimant’s psychological difficulties arising from the alleged negligence. The claim was accordingly out of time by over four years.

District Judge Grand then proceeded to consider whether to exercise discretion under section 33. The Claimant’s submissions in this respect were essentially a plea for judicial sympathy given her difficult personal circumstances and her psychological issues. The Claimant submitted prejudice in that she would lose a reasonable claim, which although relatively low in financial value, was very important to her. On the contrary, the Secretary of State for Health submitted significant prejudice in defending the claim out of time when, as a result of the delay, its factual witnesses were either unavailable or did not remember the Claimant and where a segment of the Claimant’s notes were missing. Furthermore, the Claimant’s delay was significant. Even after making a complaint, there had been a 2½ year delay before the issue of proceedings.

District Judge Grand found that the Claimant’s delay, even based on her pleaded date of acquired knowledge, was significant and, although understandable, was not justifiable. This, in addition to the prejudice to the Defendant and the low financial value of the claim, tipped the balance in favour of the Defendant. The District Judge did not exercise his section 33 discretion and the claim was dismissed.

Commentary

This case highlights important points which can inform whether or not a limitation defence is likely to succeed. In particular:

• a claimant’s constructive date of knowledge can be earlier than their actual date of knowledge (e.g. when the claimant fails to act promptly on a suspicion);
• whilst consideration should be given to whether a claimant’s personal circumstances (including their mental health) reasonably delay their acquisition of knowledge, this will not provide carte blanche for an extensive and unreasonable delay;
• claims which are less likely to succeed on their merits, and claims which are of lower value, can offer higher prospects of success on limitation; and
• the passage of time can affect a claimant’s evidence just as much as a defendant’s evidence, and the degradation of either can be relied upon.

Limitation is often seen as a dead-end for defendants in clinical negligence claims but, as this decision demonstrates, it is still a very important tool and one which can, in the right circumstances, result in the dismissal of an entire claim brought significantly outside of time.