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Case No: QBENF 1999/1274/A2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QB DIVISION WIGAN DISTRICT REGISTRY
(HIS HONOUR JUDGE HEDLEY SITTING AS A HIGH COURT JUDGE)
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 27 July 2000
B e f o r e :
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
LORD JUSTICE WALLER
and
LORD JUSTICE CLARKE
- - - - - - - - - - - - - - - - - - - - -
|
Kathleen
Magaret Oakes
|
Claimant/
Appellant
|
|
-
and -
|
|
|
Mr.
P. W. Hopcroft
|
Defendant/
Respondent
|
- - - - - - - - - - - - - - - - - - - - -
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
Mr Graham Platts & Miss S Jones (instructed by Messrs Unsworths for
the Claimant/Appellant)
Miss Fiona Neale (instructed by Messrs Le Brasseur J Tickle for the
Defendant/Respondent)
- - - - - - - - - - - - - - - - - - - - -
Judgment
As Approved by the Court
Crown Copyright ©
LORD WOOLF CJ:
Introduction
1. This is an appeal from the decision of Judge Hedley sitting as a Deputy
High Court Judge. The decision was on a preliminary issue as to whether a
claim by Mrs Oakes was statute barred. The judge found that it was statute
barred. Lord Justice Robert Walker granted permission to appeal on 13
September 1999.
2. The appeal raises a point of some difficulty as to the manner in which
s.14A of the Limitation Act 1980 as amended should be applied. S. 14A was
added to the 1980 Act by s. 1 Latent Damage Act 1986. The purpose of the
section, which only applies to actions in tort, is to avoid the injustice that
arises if a cause of action accrues without the person who is entitled to the
cause of action appreciating that the damage which gives rise to the cause of
action has occurred.
3. Mrs. Oakes, the appellant submits this is what has happened to her. She
settled an action for damages for personal injuries for less than its true
value relying on medical reports prepared by Mr Hopcroft, the defendant, which,
she contends, due to the negligence of Mr. Hopcroft, did not reveal the full
extent of the injuries she had sustained. Before she commenced her present
action based on that negligence the six year limitation period calculated from
the date her cause of action first accrued had already expired. She therefore
wishes to rely on an alternative limitation period set out in section 14A. In
order to decide whether she is entitled to do so, it is necessary to apply the
formula for determining the date from which the alternative three year
limitation period commences set out in that section to the facts of her
case.
The Limitation Period Under Section 14A
4. There is no dispute that section 14A applies to her action and,
accordingly, the limitation period applicable is that set out in section
14A(4). That period is either -
(a) Six years from the date on which the cause of action accrued ; or
(b) three years from the starting date as defined by subsection (5) below, if
that period expires later than the period mentioned in paragraph (a) above.
5. Mrs. Oakes has to rely on the period specified in (b) since it is not
disputed that the six year period referred to in (a) has expired. In accordance
with the terms of (b) it is therefore necessary to refer to the terms of
subsection (5). That subsection provides :
"(5) For the purposes of this section the starting date for reckoning the
period of limitation under subsection (4)(b) above is the earliest date on
which the plaintiff or any person in whom the cause of action was vested before
him first had both the knowledge required for bringing an action for damages in
respect of the relevant damage and a right to bring such as action."
6. Mrs. Oakes at all material times had "a right to bring such an action". So
she had three years to bring the action from the time she had first "the
knowledge required for bringing an action for damages in respect of the
relevant damage". What knowledge is sufficient for this purpose is specified
in s. 14A(6). S. 14A (6) provides :
"(6) In subsection (5) above "the knowledge required for bringing an action
for damages in respect of the relevant damage" means knowledge both -
(a) of the material facts about the damage in respect of which damages are
claimed; and
(b) of the other facts relevant to the current action mentioned in subsection
(8) below."
7. There are two limbs to subsection (6). Until Mrs Oakes had the knowledge
required by both limbs, time did not begin to run.
8. The first limb of subsection (6) is amplified by subsection (7) which
states :
"(7) for the purposes of subsection (6)(a) above, the material facts about the
damage are such facts about the damage as would lead a reasonable person who
had suffered such damage to consider 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."
9. This test is objective since it involves "a reasonable person". It is also
important to note that it requires the person concerned to be aware of damage
which is "sufficiently serious" to justify instituting proceedings. Once you
have knowledge of damage which a reasonable person would consider is
sufficiently serious to justify instituting proceedings then the requirement is
fulfilled. Once fulfilled, then the fact that you subsequently become aware of
more serious damage does not alter the position. The earlier date still
applies.
10. If there was any doubt about this, it was removed by the decision of this
court in Hamlin v Edwin Evans (1996) 29 HLR 414. In that case a
surveyor made a negligent report on a property but the extent of the negligence
was revealed in two stages. At the first stage the claimant learnt of
relatively minor damage due to dry rot. On that basis the claimant settled the
case. Subsequently much more serious damage, damage to the foundations of the
property, was discovered and the claimant wished to contend that time began to
run from the date when knowledge of the damage to the foundations was acquired.
This court held it was the earlier date when knowledge of the minor damage was
obtained which was the relevant date. This case was not referred to in
argument in the court below and it is thanks to Lord Justice Waller that it was
drawn to our attention.
11. Turning to the second limb of subsection (6). For the "other facts
relevant to the current action" it is necessary to turn to subsection (8)(a)
The terms of subsection (8)(a) are :
"(8) the other facts referred to in subsection (6)(b) above are -
(a) that the damage was attributable in whole or in part to the act or
omission which is alleged to constitute negligence;"
12. As in the case of subsection (7) once it is appreciated that the damage is
at least attributable in part to the act or omission, which is alleged to
constitute negligence, the requirements are fulfilled. The later discovery of
other damage does not postpone the commencement of the period of three years.
13. Subsections (9) and (10) are also relevant and they provide :
"(9) Knowledge that any acts or omissions did or did not, as a matter of law,
involve negligence is irrelevant for the purposes of subsection (5) above.
(10) 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 appropriate expert advice
which it is reasonable for him to seek;
but a person shall not be taken by virtue of this subsection to have 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."
14. Again it is important to note that the test in subsection (10) is
objective. There is imputed to the claimant the knowledge (i) he might
reasonably be expected to acquire (ii) with the help of expert advice
which it is reasonable for him to seek but not (iii) if, he has
reasonably not sought the assistance of an expert
15. Many of the provisions in section 14(A) are clearly based upon the almost
identical provisions in section 14. Section 14 sets out what is required to
establish knowledge for identifying the time of the commencement of the
limitation period in actions for damages for personal injury. However, in
section 14, instead of references to "damage" there are references to
"injury".
16. In applying section 14(A) it is of the greatest of importance to
identify, precisely, the nature of the damage, which coupled with the negligent
act or omission is alleged to constitute the cause of action. Subject to
bearing this in mind, it is perfectly in order to refer, as the judge did, to
the judgment of Lord Justice Brooke in North Essex District H.A. v
Spargo [1997] 8 Med LR 125 at p.129/130 for guidance, although that
judgment related to section 14. The guidance is in these terms:
"(1) The knowledge required to satisfy sect 14(1)(b) is a broad knowledge of
the essence of the causally relevant act or omission to which the injury is
attributable;
(2) "Attributable" in this context means "capable of being attributed to", in
the sense of being a real possibility
(3) A plaintiff has the requisite knowledge when she knows enough to make it
reasonable for her to begin to investigate whether or not she has a case
against the defendant. Another way of putting this is to say that she will
have such knowledge if she so firmly believes that her condition is capable of
being attributed to an act or omission which she can identify (in broad terms)
that she goes to a solicitor to seek advice about making a claim for
compensation;
(4) On the other hand she will not have the requisite knowledge if she thinks
she knows the acts or omissions she should investigate but in fact is barking
up the wrong tree; or if her knowledge of what the defendant did or did not do
is so vague or general that she cannot fairly be expected to know what she
should investigate; or if her state of mind is such that she thinks her
condition is capable of being attributed to the act or omission alleged to
constitute negligence, but she is not sure about this, and would need to check
with an expert before she could be properly said to know that it was."
17. This approach was echoed by Hoffman L.J. in Hallam-Eames v Merrett
Syndicates [1995] 122. Hoffman L.J. said;
"the act or omission of which the plaintiff must have knowledge must be that
which is causally relevant for the purposes of an allegation of
negligence..........It is this idea of causal relevance which various judges of
this court have tried to express by saying the plaintiff must know "the essence
of the act or omission to which the injury is attributable"
18. The nature of Mrs. Oakes cause of action is correctly summarised by the
judge in his judgement when he says :
"Her present claim is against the orthopaedic surgeon who, she alleges,
negligently misdiagnosed her injury and reported on the basis that she was
effectively recovered and fit for work and that as a result of that negligence
her action was settled for far less than in truth it was worth."
19. The negligence was the misdiagnosing and the reporting incorrectly Mrs.
Oakes' condition. Her "damage" for section 14A(6) was settling her action for
far less than in truth it was worth.
20. Mrs Oakes gave evidence before the judge and his findings of the facts as
to the events, which led up to the present action both parties accept. Those
facts are that Mrs Oakes suffered an accident at work on 27 August 1980. She
sued her employers in 1982 and on 17 January 1983 that action was settled for
£2,000 and costs. Her present action was commenced on the 8th
March 1991. The critical date for limitation purposes is therefor
8th March 1988.
21. Her consultant was Mr. Hopcroft. Prior to her case being settled, Mrs.
Oakes was aware of Mr Hopcroft's two reports. The first dated 9 April 1982 and
the second dated 9 November 1982. Those reports as the judge found were, "but
a pale reflection of what Mrs Oakes says she told him". In particularly Mr
Hopcroft did not consider that her inability to work after she had become
redundant was attributable to her disability. Mr Hopcroft attributed her
difficulties to "her very failure to use the right arm" and he regarded
"psychological overlay" as being a feature of the claimant's position. Mr
Hopcroft therefore as the judge says :
"never supported the view either that she had sustained a disabling injury or
that she was unable to work."
22. Mrs Oakes, on the other hand, while she did not agree with Mr Hopcroft,
still believed in him and assumed that she would get better soon. As the judge
found, she "became increasingly anxious when she failed to do so".
23. According to the evidence that Mrs. Oakes gave, by January 1988 she knew
her radial pulse had gone. By February 1988 she had been told that her injury
was not, as Mr Hopcroft had indicated, a ganglion but an aneurysm which had
been excised during the operation, and this was a permanent problem. In
addition, she had been told by Dr. Mohr in January 1988, that she had sustained
a crush injury to her right arm with arterial damage. Although for a time she
had been able to continue working, thanks to the help she received from her
colleagues at work, once she became redundant, she knew her inability to work
was because of her disability due to the accident. In addition she knew that
her loss of earnings were £30 per week and so rapidly exceeded the
£2000 at which her claim was settled.
24. It was, however, not until 1990 that she appreciated the full position
when Professor O'Connor made a report. The report set out that the accident had
caused severe traction injuries to the brachial plexus, which is a permanent
disability. In addition the report stated that she had a severely damaged
radial artery. This affects the nutrition of the hand and results in a
painfully blotchy hand, which has a poor response to temperature control. It is
also a permanent disability which Professor O'Connor describes as being
extremely serious in a 43 year old woman. Professor O'Connor makes it clear
that Mr Hopcroft' s "medico-legal report for this patients case was
negligent".
25. The judge's view of the facts to which I have referred appears from the
following passages of his judgment:
"I listened with care to the evidence of Mrs Oakes and nothing leads me to the
view that I should do other than believe what she told me and thus her
subjective knowledge was as I have recorded it in her evidence. Inevitable
from that is a finding that she knew her injuries were more serious than Mr
Hopcroft reported, that at the time her action was settled she was incapable of
work and that she knew her action was being settled on an essentially incorrect
basis namely that as reported by Mr Hopcroft."
26. The judge then set out the passage in Lord Justice Brooke's judgment to
which I have referred and continued :
"In my judgment the first three conditions are clearly met in this case. She
knew that the crucial complaints had been omitted from Mr Hopcroft's report.
She knew that her action had been settled on the basis of that report. In
those circumstances one is surprised that she did nothing about it at the time.
It does not appear that she took it up with her legal advisors. She seems
simply to have accepted the offer and the advice of her advisors. What has
troubled me has been the fourth principle annunciated by Brooke LJ."
27. Later he added :
"She knew that Mr Hopcroft had significantly under-reported her injuries and
their consequences both in terms of their impact on her life and on her
capacity to work. She knew that the settlement of her claim was on the basis
of the injury to date and (more importantly) on the basis of it having no
affect on her ability to work. It may well be that she did not know the full
extent of her injury or that it was permanent until she considered Professor
O'Connor's report. However, long before March 1988 she knew her injury and its
affect of her life were very significantly greater than had been reported by Mr
Hopcroft or acknowledged in the quantum of the settlement. Thus it follows
that the provisions of section 14A(7) are satisfied. She knew to that this was
all referable to the disparity between what she had told Mr Hopcroft and what
he reported. Thus subsection (8) is satisfied too. Even cautioning myself
against the wisdom which comes by hindsight, I am satisfied that she had the
requisite actual knowledge before March 1988."
28. Mr Graham Platts on behalf of the claimant does not seek to go behind
those very strong findings of fact. None the less, I do not regard them as
being as conclusive against the claimant as Miss Fiona Neale submits on behalf
of the defendant. Although those findings can be supported by reference to the
transcript of Mrs. Oakes evidence, they ignore any direct reference to the
advice Mrs. Oakes actually received at the time when she agreed the settlement.
The terms of the advice appears from documents contained in the agreed bundle.
They include advice of counsel. Counsel refers to the fact that she is unable
to obtain employment because of the condition of her hand but he regards it as
highly debatable whether "the medical evidence would support a claim for loss
of earnings continuing". Counsel thought the sum of £1500 "marginally low"
but £2000 acceptable. His bracket was £1750 -£2250. The advice
was sent to Mrs. Oakes together with a letter from her solicitors dated 10
January 1983 which indicates that the solicitors considered £2000 "a
reasonable settlement". Mrs. Oakes replied accepting the offer, thanking her
solicitors for their diligence in pursuing her case.
29. When that advice is taken into account, the position is significantly
altered. I remind myself of the knowledge which Mrs. Oakes has to have if time
is to commence running. She must not only know that her injuries were more
serious than those described by Mr Hopcroft, she has to know also that her
damage, which is the settlement of her case, was at too low a figure due to Mr.
Hopcroft's default. The advice of counsel alters the position. Mrs. Oakes
could properly be regarded by the judge as being aware that Mr. Hopcroft had
significantly under-reported her injuries but I see no justification for not
regarding her as acting on her counsel and solicitors advice in accepting the
settlement. The judge did not consider, in the manner he should have done, the
effect on Mrs. Oakes' state of mind of the advice she received. If he had done
so, he could not have concluded that when she accepted the settlement she had
the necessary knowledge. She had taken all reasonable steps to take and act on
advice as required by section 14A (10). She was not in a position to challenge
Mr. Hopcroft's opinion or the advice she received and it would be unreasonable
to expect her to do so.
30. The judge indicates that he was surprised that she did nothing about it at
the time and that she does not appear to have taken the matter up with her
legal advisors. Having regard to the terms of the advice, bearing in mind she
was firmly of the view that she was going to get better, her conduct is readily
understandable.
31. That is the position at the time of the settlement. However, Mrs. Oakes
has to justify her inactivity until March 1988. In particular did the failure
to take advice remain reasonable. Over the succeeding five years, Mrs Oakes
continued to suffer from her injuries. She attended hospital in September and
December 1983. She was seen by Mr. Hopcroft for treatment in April 1984 and
November 1986. In June and August 1984, she attended hospital. In February
1987, she was referred by her GP to Dr. Mohr at Hope Hospital for a second
opinion and according to the record "she is obviously trying to get some
compensation". She also sees Dr Mohr in October 1987. By January 1988, she
knew her radial pulse was absent and Dr Mohr had told her that in 1981 she had
sustained a crush injury to her right arm and arterial damage.
32. Miss Neale submits that if at the time the action was settled Mrs
Oakes did not have the knowledge that section 14A requires then this was no
longer the position by March 1988. The judge clearly thought she had the
required knowledge prior to March 1988. Whereas, her inaction in 1982 could be
excused for the purposes of subsection 14A(10) does her conduct remain
reasonable from March 1988 until three years before she commenced her
action? The judge's finding is not challenged, that "long before March 1988 she
knew her injury and its effects on her life were very significantly greater
than reported by Mr Hopcroft". If she had taken fresh advice, it was inevitable
that she would have learnt of the inadequacies of the medical reports and that
this had resulted in the modest settlement. This is precisely what happened
when she took the fresh advice that resulted in Professor O'Connor's report in
1990.
33. The judge's approach having been flawed by his failure to have regard
to the advice that Mrs. Oakes received, it is necessary for us to reevaluate
the evidence and reassess the reasonableness of Mrs. Oakes' conduct. It all
turns on section 14A. Was she unreasonable in not taking advice earlier. I have
found this critical question more difficult than Lords Justices Waller and
Clarke. However, I have ultimately come to the same conclusion as they have.
When she commenced her action Mrs. Oakes is not to be treated as having
acquired the necessary knowledge over three years earlier because of the
provisions of section 14A (10). What I have found tips the balance in her
favour is the fact that once you have acted on advice the passage of time means
that advice recedes to the background of your mind, so it is less readily open
to question. The result is that until some one or some incident directly
challenges the advice you continue reasonably to assume it was correct. The
fact that Mrs. Oakes knew her condition was not improving as, she had hoped it
would, and fact she was aware her condition was at least in part permanent did
not mean she was not reasonable in continuing to rely on the advice she
received. It would involve placing an excessive burden upon her to expect her
to question the advice her counsel and solicitors had given her to settle based
on Mr. Hopcroft's report.
34. I would allow this appeal.
Lord Justice Waller :
35. I accept fully and adopt gratefully the reasoning of my Lord the Lord
Chief Justice in paragraphs 1 to 17 of his judgment. That leads him to state
in paragraph 18 that for the purpose of Section 14A, in this case :
"The negligence was the misdiagnosing and the reporting incorrectly Mrs Oakes'
condition. Her "damage" was settling her action for far less than its true
worth."
I agree
36. However my understanding of Hoffman LJ's judgment in Hallam-Eames v
Merret Syndicates is that what he intended by referring to the acts of
negligence of which the plaintiff must have knowledge as "the act or omission
.... which is causally relevant" (in the passage quoted by my Lord) was to some
act or omission of which "she would prima facie be entitled to complain". He
rejected the argument addressed to us in this case by Miss Neale, that by
introducing a requirement that the plaintiff must have known of some act or
omission of which she could complain, that was introducing by the backdoor that
the plaintiff must have known that the defendant was negligent contrary to
section 14A(9). There is an important distinction between knowing that
something has been missed and knowing whether the missing of that something is
negligent.
37. The question in my view to be posed is this. Did Mrs Oakes know "the
essence of the act or omission to which (the damage) was attributable" - to
adapt Purchas LJ in Nash v Eli Lilly? In the instant case that is not
simply that Mr Hopcroft had "under reported her injuries". Those words seem to
me to confuse symptoms with the physical causes of the symptoms, and fail to
keep clear the distinction between her injuries, and their cause, and the low
settlement, and its cause.
38. It seems to me that in making the findings of fact quoted by my Lord in
paragraphs 24, 25 and 26 of his judgment, the Judge is concentrating on Mrs
Oakes' knowledge of her physical symptoms, and the perception which she
undoubtedly had, that she was obtaining too little in the settlement. The
question that the judge should have been addressing was when did Mrs Oakes know
that the damage ie too low a settlement, was caused by a misdiagnosis.
39. Even absent counsel's advice it seems to me that as at the date of
settlement Mrs Oakes simply did not know that there had been a misdiagnosis,
and that her discomfort was due to injuries undetected. She trusted Mr
Hopcroft, and it is understandable that she should not appreciate that he had
failed to detect injuries.
40. Thus it would not simply be on the basis of counsel's advice that I would
hold that as at that date Mrs Oakes did not have the requisite knowledge to
start the three year period of limitation running.
41. Clearly by March 1988 Mrs Oakes knew something more because things had not
got better as on Mr Hopcroft's advice they should have. By January 1988 she
knew her radial pulse was absent. In January 1998 she was told by Dr Moore
that she had in 1981 sustained a crush injury to her right arm with arterial
damage. By 5th February 1998 she had been told by Mr Mosley that
her injury had not been a ganglion but an aneurysm which had been excised
during the operation, and this was a permanent problem. She knew that if her
problem was permanent the value of her loss of earnings claim (if she had one)
was at the rate of about £30 a week. But the question is whether she was
aware of the essence of the omission which had caused the original settlement
to be too low ie that there had been a misdiagnosis; not, it should be noted,
whether that misdiagnosis had been negligent but simply whether there had been
a misdiagnosis.
42. It seems to me that the evidence does not go that far. It demonstrates
that she was taking expert opinion at the beginning of 1998, and it further
demonstrates that the conclusion that was drawn from it, with the assistance of
experts, was that she might have a cause of action in negligence resulting from
the operation performed after her accident. No-one suggested to her that there
might have been a misdiagnosis by Mr Hopcroft of the injury she suffered as a
result of the accident.
43. It would not be fair to say, for example, that if she had taken advice in
January 1988, it would have been inevitable that she would have learned of the
inadequacies of the original medical report. The evidence demonstrates to the
contrary.
44. The position in reality was that she simply did not know of any
misdiagnosis ie the essence of her complaint against Mr Hopcroft, until she
received the report of Professor O'Connor.
45. I would allow the appeal.
Lord Justice Clarke :
46. I have not found this an easy case. As I see it, the purpose of section
14A of the Limitation Act 1980, like that of section 14, is to try to identify
the moment when a claimant has such knowledge that he or she can reasonably be
expected to start proceedings. The Lord Chief Justice has set out the relevant
parts of section 14A which describe what the claimant is required to know. It
is to my mind important that the section requires relevant knowledge.
Nothing less than knowledge will do; hence the contrast between the states of
mind of a claimant with and without the necessary knowledge referred to by
Brooke LJ in paragraphs (3) and (4) of the guidance given by this court in
North Essex District Health Authority v Spargo [1997] 8 Med LR at page
130 which have been quoted by the Lord Chief Justice in paragraph 16 of his
judgment.
47. Brooke LJ (with whom Nourse and Waller LJJ agreed) concluded in this way
:
"On the other hand [the claimant] will not have the relevant knowledge .... if
her state of mind is such that she thinks that her condition is capable of
being attributed to the act or omission alleged to constitute negligence, but
she is not sure about this, and would need to check with an expert before she
could properly be said to know that it was".
48. That case was concerned with section 14, but the same approach is
applicable to section 14A. Thus before the claimant can be held to have known
that the damage, that is settling at too low a figure, was capable of being
attributable to the act or omission of the defendant, she must be sure of it in
her own mind. The only qualification is that introduced by section 14A(10),
namely that she will be treated as having that knowledge if she might
reasonably have been expected to obtain it from an expert whom it was
reasonable for her to consult.
49. I agree with my Lords that the act or omission relied upon by the claimant
as constituting the negligence was essentially the misdiagnosing and the
incorrect reporting of her condition by the defendant. This can perhaps be
described as either an act or an omission, or possibly both, but it seems to me
to be more aptly described as an omission. It is I think for this reason that
I have found the section difficult to apply. It is not easy to identify what a
claimant must know about an omission in order to have knowledge that her loss
is capable of being attributable to it.
50. The answer can perhaps be found by a consideration of the approach of this
court in Hallam-Eames v Merrett Syndicates Ltd [1995] 7 Med LR 122 where
Hoffmann LJ gave the judgment of the court, which comprised Sir Thomas Bingham
MR, Saville LJ and himself. In that case claims were made by Lloyd's names in
respect of large losses sustained as members of syndicates at Lloyd's. The
names alleged negligence against the active underwriter, the managing agents
and the members' agents. The question arose whether the names had the
necessary knowledge for the purposes of section 14A. Gatehouse J interpreted
two leading cases decided under section 14, namely Broadley v Guy Clapham
& Co [1993] 4 Med LR 328 and Dobbie v Medway Health Authority
[1994] 5 Med LR 160 as follows according to Hoffmann LJ (at pp 125-6):
"Gatehouse J interpreted these cases to mean that a plaintiff need only have
known that his damage had been caused by an act or omission of the defendant.
He held that the reports, accounts and letters which the Names had received
informed them that they had suffered substantial losses in consequence of the
run-off contracts entered into by the managing agents. Likewise he held that
the Names had knowledge that they had suffered losses in consequence of the
liabilities incurred on the RITCs being substantially greater than the premiums
fixed by the managing agents and that the RITCs were based upon the accounts
certified by the auditors. Knowledge of these facts was, he said, sufficient
to satisfy section 14A(6)(a).
In our judgment this is an over-simplification of the reasoning in Broadley
and Dobbie. If all that was necessary was that a plaintiff should have
known that the damage was attributable to an act or omission of the defendant,
the statute would have said so. Instead, it speaks of the damage being
attributable to "the act or omission which is alleged to constitute
negligence." In other words, the act or omission of which the plaintiff must
have knowledge must be that which is causally relevant for the purposes of an
allegation of negligence. There may be many acts, omissions or states which
can be said to have a causal connection with a given occurrence, but when we
make causal statements in ordinary speech, we select on common sense principles
the one which is relevant for our purpose. In a different context it could be
said that a Name suffered losses because some members' agents took him to lunch
and persuaded him to join Lloyd's. But this is not causally relevant in the
context of an allegation of negligence."
51. The passage in Hoffmann LJ's judgment which follows is illuminating
because it helps to identify the correct approach, namely to try to ascertain
in each case essentially what it is that the claimant is complaining about. He
said (at p 126):
"It is this idea of causal relevance which various judges of this court have
tried to express by saying the plaintiff must know "the essence of the act or
omission to which the injury is attributable" (Purchas LJ in Nash v Eli
Lilly & Co [1993] 1 WLR 782, 799) or "the essential thrust of
the case" (Sir Thomas Bingham MR in Dobbie [1994] 1 WLR 1238) or that
one should
"... look at the way the plaintiff puts his case, distil what he is
complaining about and ask whether he had in broad terms knowledge of the facts
on which that complaint is based."
(Hoffman LJ in Broadley [1993] 4 Med LR 328, 332.)
If one asks on common sense principles what Mrs Dobbie was complaining about,
the answer is that the surgeon had removed a healthy breast. It would in our
view be a seriously incomplete statement of her case to say that it was simply
that the surgeon had removed her breast. This is not a matter of elaborating
the detail by requiring knowledge of precisely how he had come to do the act
complained of, such as this court rejected in Broadley. It was part of
the essence of her complaint. Nor is it requiring knowledge of fault or
negligence. The court's emphatic rejection of such a requirement is entirely
consistent with characterising the act complained of (and of which knowledge
was therefore required) as the removal of a healthy breast. But the judge, as
it seems to us, has read Dobbie to mean that knowledge that the surgeon had
removed her breast would have been enough.
If one asks what is the principle of common sense on which one would identify
Mrs Dobbie's complaint as the removal of a healthy breast rather than simply
the removal of a breast, it is that the additional fact is necessary to make
the act something of which she would prima facie seem entitled to complain.
She was suspected of having a cancerous lump and if this had been the case, the
removal of her breast would not have been a matter for complaint. Likewise
Mrs Broadley's complaint was the surgeon had caused damage to her foot when he
was supposed to be mending her knee. Mr Clarke QC, for the auditors, and Mr
Toulson QC, for the members' agents, protested that such a principle was a
back-door way of introducing a requirement that the plaintiff must have known
that the defendant had been negligent (which section 14A(9) expressly declares
to be irrelevant) or was by some other criterion at fault (which this court
rejected in Broadley and Dobbie.) We do not agree. The
plaintiff does not have to know that he has a cause of action or that the
defendant's acts can be characterised in law as negligent or as falling short
of some standard of professional or other behaviour. But, as Hoffman LJ said
in Broadley, the words "which is alleged to constitute negligence" serve
to identify the facts of which the plaintiff must have knowledge. He
must have known the facts which can fairly be described as constituting the
negligence of which he complains. It may be that knowledge of such facts will
also serve to bring home to him the fact that the defendant has been negligent
or at fault. But that is not in itself a reason for saying that he need not
have known them."
52. I have set out that passage in some detail because it seems to me to be
illuminating and to point to the solution here. If one asks what is it that
the claimant is essentially complaining about, it is that the defendant failed
to diagnose her condition correctly and to advise her that the accident had
caused a severe traction injury to the brachial plexus and damage to the radial
artery and that her condition would not improve. It was only when she knew
both what injuries had been caused by the accident and, importantly, that they
would not improve so that she would not (as it were) get better, that to my
mind it can fairly be held that she knew that the omission of the defendant to
give her that advice caused her damage. The damage was the loss she sustained
because she settled for too little. The claimant could not know that she had
settled for too little as a result of any failure on the part of the defendant
until she knew that she would not get better because it was that fact, namely
that her condition would not improve, which essentially caused the settlement
to be too low. That is because the essential reason that the settlement is
said to have been too low is that it did not include anything to compensate her
for not being able to work in the future as a result of the accident.
53. In these circumstances I agree with Lord Justice Waller that even absent
counsel's advice the claimant did not have the necessary knowledge such that it
could be said that it would have been reasonable for her to start proceedings
against the defendant in, say, 1992 or 1993. As the Lord Chief Justice puts it
in paragraph 21, she believed in Mr Hopcroft and assumed she would get better
soon. None of the findings of fact made by the judge as to the claimant's
knowledge which have been set out in detail by my Lord to my mind supports the
conclusion that she knew that she was settling at too low a sum because
of any failure on the part of the defendant. In any event I agree with the
Lord Chief Justice that when she reached the settlement with her employers she
had taken all reasonable steps to obtain and act on the advice first of the
defendant and then of her solicitors and counsel.
54. Thereafter the claimant continued to believe in the defendant, although
she became increasingly concerned that her condition was not improving. She
was under the care of the defendant until 1986, when he referred her to a
neurologist, Dr Mohr, whom she saw in October 1987 and in January 1988. By
that time she was aware that she had no pulse in her right arm, although she
did not know why. She suspected that it was something to do with the 1981
operation on what she had been told was a ganglion. Dr Mohr suggested that she
be referred to a vascular surgeon and she saw Mr Mosley in February 1988. He
told her that the lump on her wrist had been caused by the accident but that it
was an aneurysm and not a ganglion and that her radial artery had been cut in
the operation in 1981.
55. The question is whether by that time the claimant had the relevant
knowledge. I recognize the force of the submission that she had, based on the
judge's finding that "long before March 1988 she knew her injury and its
effects on her life were very significantly greater than reported by Mr
Hopcroft". However, for my part, I do not think that even then she knew that
the cause of her loss by settling for too little was the misdiagnosis on the
part of the defendant. Her state of mind at that time was that the cause of
her problems was not any omission on his part but the fact that her radial
artery had been cut during the operation in 1981. As Lord Justice Waller puts
it, no-one suggested to the claimant at that time that her problems were not
caused by the way the operation was carried out, but by an under-settlement
caused by misdiagnosis on the part of the defendant.
56. In these circumstances it is, in my judgment, too harsh a view of the
claimant to hold that she should have taken advice and that, if she had done
so, she would have learned of the inadequacies of the medical reports and that
this had resulted in the settlement for £2,000 in 1982. On the contrary,
it seems to me that the claimant took reasonable steps to take advice from the
defendant and then from Dr Mohr and from Mr Moseley and that it was only when
she obtained the advice of Professor O'Connor in 1990 that she knew (or ought
to have known) that the loss which she suffered as a result of settling for too
little was attributable to any failure on the part of the defendant to advise
her that the injuries which she sustained as a result of the accident were
permanent and such as to prevent her from working in the future.
57. I agree with Lord Justice Waller that the position in reality was that the
claimant did not know of any misdiagnosis which caused the settlement at too
low a figure, which is the essence of her claim against Mr Hopcroft, until she
received the report of Professor O'Connor. I also agree with the Lord Chief
Justice that it was reasonable for Mrs Oakes to continue to rely upon the
advice she received and not to consult Professor O'Connor until after the
8th March 1988, which was three years before the writ was issued on
the 8th March 1991. It follows that she did not have the necessary
knowledge or constructive knowledge for the purposes of section 14A until after
the 8th March 1988 and that her action is not time barred. For
these reasons I too would allow the appeal.
Order: Appeal allowed with costs.
(Order does not form part of approved judgment.)
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