15th November 2022
By Andrew Butler KC
A recent case of mine caused me to look again at the case of Dobbie v Medway Health Authority and left me wondering how the law of limitation could have compelled the result it did.
For readers not familiar with the case, a summary of the facts: Mrs Dobbie was admitted to hospital in April 1973 for an operation to remove a lump on her breast. She came round from the anaesthetic to find that, contrary to her expectations, her breast had been entirely removed. This caused her severe psychological illness. Pathological analysis subsequently showed that the lump had not been malignant, but Mrs Dobbie was told that it had still been appropriate to remove it and accepted that view. In 1988, she discovered that the breast need not have been removed. She commenced proceedings in 1989.
The defendant health authority relied on a limitation defence. This defence was tried as a preliminary issue and upheld by the judge. The Court of Appeal dismissed the appeal. The primary limitation period (three years from the date of injury) had clearly passed and the key section for the purposes of this conclusion was section 14 of the Limitation Act 1980. This provides inter alia that the secondary limitation period runs from the date when the claimant has knowledge “that the injury was attributable in whole or in part to the act or omission which is alleged to constitute negligence”. It also provides that “knowledge that any acts or omissions did or did not, as a matter of law, involve negligence…is irrelevant”.
The essence of the Court of Appeal’s reasoning can be found in the judgment of Sir Thomas Bingham MR, in the following terms:
“The personal injury on which the plaintiff seeks to found her claim is the removal of her breast and the psychological and physical harm which followed. She knew of this injury within hours, days or months of the operation and she at all times reasonably considered it to be significant. She knew from the beginning that this personal injury was capable of being attributed to, or more bluntly was the clear and direct result of, an act or omission of the health authority. What she did not appreciate until later was that the health authority’s act or omission was (arguably) negligent or blameworthy. But her want of that knowledge did not stop time beginning to run.”
I can only imagine the dismay with which Mrs Dobbie and her legal team must have greeted this conclusion. While Dobbie is doubtless decided in accordance with the law as it stood (and, indeed, as it still stands) – and has been cited with approval many times since – it seems to me to be a grotesquely unjust outcome. Mrs Dobbie was prepared to accept medical advice that the procedure adopted had been appropriate. Only much later did she discover that it was not. As a matter of common sense, surely that discovery was material to Mrs Dobbie’s decision whether or not to sue? I can well imagine that she might have thought: “What happened to me is awful, but as long as I thought it was a proper medical procedure I could live with it. Now I know that I have been put through all that unnecessarily, I cannot.” Nobody could have criticised her for thinking like that.
As a non-personal injury case, my case involved section 14A rather than section 14, but that section is in materially identical terms. It is easy enough to follow down to about sub-section (5), when the woods start getting a bit thicker:
“(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 an action.”
Sub-section 6 then explains what is meant by “the knowledge required for bringing an action for damages”. It states that that is:
“…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.”
But before one gets to sub-section (8), one has to navigate sub-section (7):
“(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.”
By this stage, the path is (in my mind at least) becoming a little bit fainter. And then we come on to sub-section (8):
(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; and
(b) the identity of the defendant; and
(c) if it is alleged that the act or omission was that of a person other than the defendant, the identity of that person and the additional facts supporting the bringing of an action against the defendant.
Sub-sections (b) and (c) are easy enough, but as for sub-section (a) – well, other readers may be more navigationally adept than I am, but I must confess that by this stage I am becoming rather lost.
And then there is the equivalent of the sub-section which did for poor old Mrs Dobbie:
“(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.”
As I read this, it basically means that you just need to know what happened. You don’t need to know that what happened fell below the standard of reasonable care and skill (or whatever other standard is applicable).
And, as if that were not all confusing enough, the coup de grace comes in sub-section (10) where the drafter tells us that everything that has gone before also includes constructive knowledge:
“(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.”
Is anyone still following?
I have just spent two days arguing about these provisions in front of a High Court judge, citing copious authority and inwardly marvelling at the intellectual dexterity they contain (as well as the injustice of the results in some of them). It has left me thinking: yes, balancing the rights of the ignorant claimant with those of the exposed defendant is an undoubted problem, but surely there must be an easier way of solving it? What would be wrong, for example, with a provision which allows a claimant to sue within three years (subject to a long-stop period) of discovering a fact which would be material to a reasonable person in deciding whether or not to sue? That might be to do with the scale of the damage suffered, the solvency of the defendant, the causative effect of the defendant’s acts or omissions or anything else which would operate on the mind of a reasonable person in the position of the claimant.
Provision could easily be made to exclude from this the careless claimant who, for example, fails to read a document which he or she should have read and which would have alerted him or her much earlier to the existence of the claim. True, judges may take differing views about what a reasonable claimant would, or would not, have done. But they do that all the time, and that sort of subjectivity is the luck of the litigation draw. (It is also repeatedly required by the existing sections 14 and 14A in any event). Surely something as simple as that would be better than the exercise currently required, which is not only labyrinthine but also runs the risk of leaving further Mrs Dobbie wondering how it has left them where it has.
This article first appeared on the Practical Law Dispute Resolution Blog on 14th November 2022.
Team: Andrew Butler KC
Expertise: Professional Negligence
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