-----Original Message-----
From: James Lee
Sent: July 9, 2008 7:12 AM
Subject: Another case on limitation
Dear All,
I agree that this is an interesting discussion. Two cases do not of course amount to a flood, but there is another recent case following the Lords' decision in Hoare, holding that it would be equitable to disapply the limitation period. In Khairule v North West Strategic Health Authority [2008] EWHC 1537 (QB) (4 July 2008), Mrs Justice Cox DBE was concerned with a claim for personal injuries arising from alleged clinical negligence. The introductory paragraphs explain the situation:
3. A letter of claim dated 6 March 2006 was sent to the Defendants' solicitors, in accordance with the clinical negligence disputes pre-action protocol, and proceedings were subsequently issued against the Defendants on 26 July 2006. The Claimant alleges, essentially, that he suffered profound asphyxiation leading to circulatory collapse at around the time of his birth; that the period of pre-delivery asphyxial insult continued for a further 5 to 10 minutes after his birth; and that the total period of hypoxia caused the damage to his brain and the athetoid form of cerebral palsy from which he suffers. It is not in dispute on the pleadings that, had the Claimant been born just 5 minutes earlier, at or before 21.20, he would probably not have sustained brain damage.
4. The Claimant alleges that his brain damage was caused by the negligence of the medical and midwifery staff attending his mother's labour, in particular in restarting the Syntocinon infusion at 21.00 hours; in attempting unsuccessfully to deliver the Claimant vaginally, first by Ventouse extraction and then by forceps; and in failing to decide to deliver him by caesarean section well before 21.00 hours. All the allegations of breach of duty are denied, the Defendants contending that the labour and delivery were managed entirely in accordance with appropriate contemporary practice.
5. The Defendants also raised a limitation defence and it is common ground that, since the Claimant reached his age of majority on 18 June 1999, the primary limitation period under section 11 of the Limitation Act 1980 (the Act), subject to the Claimant's date of knowledge, expired on 18 June 2002. By special agreement of the parties the notional date of commencement of this action is 6 March 2006.
6. The Claimant's case is that his date of knowledge (actual or constructive) was in November 2005, when he received supportive expert opinion confirming that his injury was capable of being attributable to the acts or omissions now relied on in the Particulars of Claim as constituting negligence for which the Defendants are liable. Alternatively it is said that his date of knowledge was no earlier than the 27 July or the 7 March 2003 (three years before the actual or notional date of issue of proceedings).
After a careful judgment, her conclusion is:
128. I have revisited and carefully considered the various factors set out above. Having regard both to those matters listed under section 33(3) and to all the circumstances generally, I have arrived at a clear view that, in balancing the prejudice to the Claimant and to these Defendants, the circumstances weigh firmly in favour of the Claimant. The Defendants, though not notified of the claim until 2004, have been able to investigate the claim and, for the reasons I have given, a fair trial of the issues in this case is possible. In the circumstances I find that the Claimant has discharged the burden upon him of satisfying me on all the available evidence that it would be equitable to disapply the limitation period in this case and to allow the claim to proceed.
The case demonstrates that the effects of the Lords' decision concerning s.33 are not limited to abuse or sexual assault cases (not that I think that anyone in the discussion was suggesting that), although the facts here are also emotive. We can and do, of course, have every sympathy with the claimants in both Hoare and Khairule, but I share Prof MacQueen's particular concerns about the undermining of the general approach to, and point of, the limitation periods.
