The Court's recent decision on Kara Rayner v Wolferstans (a firm) and Medway NHS Foundation Trust  EWHC 2957 (QB) provides some useful guidance on the application of Sections 11, 14 and 33 of the Limitation Act 1980.
The Claimant, Kara Rayner, underwent an epidural in January 2004, during the birth of her second child at Medway Maritime Hospital (Medway). Following the epidural, the Claimant experienced pain and discomfort, resulting in a diagnosis of hydrocephalus which required surgery.
The Claimant instructed the Defendant solicitors, Wolferstans, in June 2004 to investigate a claim against Medway. On 22 July 2004, the Claimant made a statement for the purposes of obtaining funding which stated that she believed her injuries were caused by the anaesthetic needle having been pushed in too far during the administration of the epidural.
Expert evidence was obtained which concluded that it was likely that the Claimant had suffered a dural puncture but that this was unlikely to involve any negligence on the part of Medway. This explanation provided an inadequate explanation for all the Claimant's symptoms and an MRI scan was recommended.
The Claimant failed to have an MRI scan for a variety of reasons including claustrophobia. Given that neither expert was able to support a case of negligence without the scan, Wolferstans advised the Claimant to discontinue her claim against Medway. This advice was accepted in August 2007 and legal aid withdrawn.
Primary limitation against Medway expired on 7 September 2007, following several extensions to the limitation period.
In August 2010, the Claimant was successfully given an MRI scan under sedation, resulting in a diagnosis of arachnoiditis. The Claimant instructed new solicitors with a view to pursuing a professional negligence claim against Wolferstans, and in 2012, one of the experts originally instructed, stated that there was sufficient evidence to suggest that her conditions were caused by the injection of a chemical, chlorhexidine (used to disinfect the entry site).
The Claimant issued proceedings against Wolferstans on 2 September 2013 alleging that, as a result of Wolferstans having insufficiently investigated the claim against Medway, the Claimant had lost the chance to pursue Medway.
Wolferstans defended the claim on the grounds that:
- The three year limitation period in which the Claimant had to bring her claim under Section 11(4)(a) Limitation Act 1980 (the Act) did not start to run until April 2012, when the cause of the arachnoiditis was known. As it was only at that date that the Claimant had sufficient knowledge pursuant to Section 14, the claim against Medway was still live, there was no loss of chance, and there could be no cause of action against Wolferstans; and
- If the claim against Medway was not live, the Claimant had failed to mitigate her loss by not applying to the court and asking it to exercise its discretion under Section 33 of the Act to disapply Section 11 of the Act, thereby allowing the claim against Medway to proceed.
The Claimant issued proceedings against Medway in August 2014 and made an application pursuant to Section 33. The two sets of proceedings were consolidated and the Section 11 and Section 33 questions were heard as a preliminary issue on 12 and 13 October 2015 before Mr Justice Wilkie.
The Section 11 question
Mr Justice Wilkie held that, for the purposes of Section 11(4)(a) of the Act, the date of the Claimant's knowledge ran from 22 July 2004 (the date of the statement to the funders), at which point the Claimant had a firm belief that her injuries had been caused by an error during the administration of the epidural.
It was not determinative that the Claimant did not know at that stage what the precise cause of the injuries was. All that is necessary for 'knowledge' is a broad knowledge of the essence of the causally relevant act or omission.
The claim against Medway was therefore statute barred.
The Section 33 question
However, Mr Justice Wilkie decided to exercise his discretion under Section 33 to disapply Section 11 of the Act, and allow the claim against Medway to proceed.
In coming to this conclusion, the Court took the following factors into account:
- It was only in April 2012, when the expert knew the precise mechanism by which the Claimant's injuries had been caused, that the Claimant knew she had a claim against Medway in negligence;
- Prior to this point, the Claimant had had sufficient knowledge for the purposes of Section 14 of the Act. However, in not pursuing Medway she had been acting on legal and medical advice that the claim against Medway had little or no prospect of success;
- The Claimant had a good claim against Medway, which was statute barred by virtue of Section 11;
- The claim against Wolferstans was by no means bound to succeed. Accordingly, the Claimant would suffer prejudice if Section 11 was applied, because she would be unable to bring a good claim against Medway and there was no appropriate alternative remedy against Wolferstans; and
- The prejudice to the Claimant outweighed any prejudice which may be suffered by Medway in the Court exercising its Section 33 discretion.
The key factor that the Court had to decide in considering whether to exercise its Section 33 discretion was the prejudice caused to the parties.
In considering this question, it was extremely persuasive to the Court that:
- the claim against Wolferstans was not certain to succeed. Liability in the claim against Wolferstans was in dispute and, as the claim against Wolferstans was put as a loss of chance, even if successful, the Claimant would not recover 100% of the damages;
- the prejudice caused to Medway in the Court exercising its discretion was considered to be greatly outweighed by the prejudice to the Claimant. In considering this question, the Court heard evidence from both parties as to prejudice (the Claimant pleaded Res Ipsa Loquitor - this was not a case where one would actually expect to find any evidence in any event, of the negligent act).
Whilst the position in respect of Section 14 remains unclear as to the nature of the knowledge required (and case law remains conflicting on the point), the Judge favoured the more generous approach to knowledge set out in Spargo v North Essex District Health Authority 1997 PIQR.
However, there was real value in getting the matter before a Judge to consider all the facts, the actions of the respective parties and the whole question of prejudice.
No admission of liability had been made and the Judge considered prejudice very carefully. The value of a claim against a solicitor is never as high as a claim against the primary tortfeasor (in this case Medway) and the case demonstrated the value of running a failure to mitigate argument in these circumstances.
It is worth noting that the Claimant felt compelled to issue against the Trust and raise the section 33 point solely because of the defence pleaded against her.
Never assume that too much time has passed to raise a section 33 point. It's not about time but rather about prejudice.