Yet another limitation case from the Court of Appeal.

The claimant was born in 1974 with cerebral palsy. The allegations of negligence were that a relatively junior doctor had persisted for too long in attempting to deliver the claimant by forceps. When a more senior doctor was called he completed the delivery with a different type of forceps in a few minutes.

The claimant had issues with balance and mobility and his speech was a little slow and slurred, but despite this he got on with his life, not really regarding himself as disabled, and had gained a PhD in mathematics and held down a demanding job.

He had known all along that his problems were caused by deprivation of oxygen during the birth process and that his delivery had been by forceps but he did not know, and had never asked about, his mother’s belief that the doctor’s inexperience and inappropriate technique were the cause.

In his early 20s his condition began to deteriorate such that he began using a wheelchair all the time and there was further deterioration in his speech. Sometime in 2005 his mother saw a newspaper article about someone successfully pursuing a claim for cerebral palsy at the age of 40.

Concerned about his continuing deterioration, and conscious that her ability to look after him would diminish as she grew older, she decided to speak to him about her concerns about the doctor who had attended.

Proceedings were issued in 2006, by which time he was 32.

The Judge found the claimant to have no actual or constructive knowledge until 2005 but that if he was wrong on that he would not have exercised his discretion under section 33. The defendants appealed the knowledge finding and the claimant cross-appealed the discretion finding.

The Court of Appeal allowed both the defendant’s appeal and the claimant’s cross-appeal.

Actual knowledge – Dyson LJ accepted that the claimant had no actual knowledge until the 2005 conversation with his mother. What was needed was knowledge of the essence of the act alleged to constitute negligence. What he knew (that he had been deprived of oxygen and that forceps were used) was not the essence of his case.

The essence of his case was the persistence of the attempted delivery for an overlong time with inappropriate forceps, and this he did not know until 2005.

Constructive knowledge – the defendants relied heavily on Adams -v- Bracknell, the House of Lords decision from 2004. This confirmed that the test for constructive knowledge was objective and did not take into account any of the personal characteristics of the claimant (other than that he was a person with the particular disability) such as his stoical determination to get on with his life.

They also sought to rely on the statement of Lord Hoffman in Adams that anyone with a significant injury had an “obligation of curiosity” to enquire about what the cause was. Dyson LJ finds that the “obligation of curiosity” does not form part of the ratio of Adams.

So far, so good. He then goes on, however, to apply an almost identical test. He says that a reasonable person, with the kind of symptoms the claimant had by his early 20s, would have asked about their cause, and if he had asked he would have been told (as he was in fact told in 2005).

This reflects an increasing trend over recent years to tighten up on constructive knowledge. Anyone with any significant symptoms who did not ask questions about their cause will, it seems, need to have either a good reason why they did not, or be able to show that, even had they asked questions, they would not have been told the information that would have given them knowledge.

Section 33 – perhaps conscious of the harshness of their decision on constructive knowledge, the Court of Appeal granted section 33 discretion. Interestingly, despite the plethora of cases, they did so without citing one single authority. What they do stress is the statutory obligation to consider all the circumstances of the case.

The fact that there could still be a fair trial (most – although not all – of the records remained in existence) was an important factor but not, of itself, determinative. This is in contrast with a recent tendency to stress these evidential matters above all else when considering section 33.

Whiston -v- London Strategic Health Authority [2010] EWCA Civ 195.