Date of knowledge claim appeal

Rogers v East Kent Hospital NHS Trust

(Queen's Bench Division - 22 January 2009)

In 1996, the claimant underwent surgery for a hallux valgus deformity of the left foot. She was advised of a 10% to 15% risk that the surgery would be unsuccessful. The surgery was unsuccessful and in 1997 the second toe was amputated and a hemi-phalangectomy of the third toe was performed.

The claimant was seen at another hospital in 2003 by Mr Price, consultant orthopaedic surgeon, and further discussions took place regarding alternatives to amputation. Mr Price later gave evidence that the claimant had then mentioned obtaining legal advice on the merits of a claim.

A claim form was issued in 2006, 10 years after the original surgery. Limitation was tried as a preliminary issue. The trial judge held the claimant had constructive knowledge under s14(3) of the Limitation Act 1980 in 1997 or 1998 when further enquiries of the GP or orthopaedic team would have fixed her with sufficient knowledge to found a claim. He declined to exercise discretion under s33 of the Act, having accepted there was prejudice to the defendant that had been compounded by a lack of reasonable expedition by the claimant's solicitors. The claimant appealed.

On appeal, it was held it was wrong to fix the claimant with knowledge in 1997 or 1998. The key point was she had been told of a 10% to 15% risk surgery would not succeed and assumed she was one of those cases and would have to live with the outcome. The actual date of knowledge was hence in 2003, when the claimant discussed alternatives with Mr Price.

Comment

Given the conclusion regarding date of knowledge, the issue of s33 discretion did not arise. Had it done so this too would have been decided in the claimant's favour. The defendant could not demonstrate sufficient prejudice to bar the claim. - Greg McEwen, BLM London

The following law report contributed by specialist insurance practice Berrymans Lace Mawer first appeared in Post Magazine on 19 March 2009.

Disclaimer: The law report contains information of general interest about current legal issues, it does not present a complete or comprehensive statement of the law, nor does it constitute legal advice. Specialist legal advice should always be sought in any particular case.