Spargo v North Essex District Health Authority [1997] EWCA Civ 1232

EWCA-Civ
Spargo v North Essex District Health Authority
[1997] EWCA Civ 1232 · 1997-03-13
MR. T. COGHLAN QC (instructed by Messrs Le Brasseur J Tickle, London WC2) appeared on behalf of the Appellant Defendant.MR. S. MASKREY QC and MR. A. BUCHAN (instructed by Messrs Gadsby Wicks, Chelmsford) appeared on behalf of the Respondent Plaintiff.

J UDGMENT

(As Approved by the Court)

Crown Copyright

Thursday, 13th March 1997

LORD JUSTICE BROOKE:

This is an appeal by the Defendants against a judgment of Collins J on 20th September 1995 when he ordered on the trial of a preliminary issue that the Plaintiff’s claim for damages for medical negligence was not statute-barred by reason of the provisions of Sections 11 and 14 of the Limitation Act 1980.The Plaintiff Jose Ann Spargo is now 67. Her complaint in this action is that a negligent diagnosis made 22 years ago led to her being detained in a psychiatric hospital for six years between 1975 and her release in 1981 for much longer than was necessary and that this experience has had a catastrophic effect on her life. In order to understand the central issue which the judge had to decide it is first necessary to say something about the history.The Plaintiff was born on 4th March 1930. She had two brothers and one sister. There was no clear history of psychiatric illness in the family. When she was at Colchester County High School she attained A levels in History, French, English and Art. In 1951 she embarked on a career as a journalist when she because a reporter with the Essex County Standard. Five years later she became the chief reporter for the Essex Chronicle and by 1961 she was the chief sub-editor for that paper. In 1968 she was appointed editor of the Newsman Herald while continuing to sub-edit the Essex Chronicle.The Plaintiff and her solicitor gave oral evidence, in addition to their affidavit evidence, to the judge at the trial of the preliminary issue. His findings as to what happened after 1970, when she was 40 years of age, were along the following lines.She had started to take barbiturates in substantial quantities, and she was also having difficulties with her marriage. The upshot of all this was that she developed psychiatric problems and her behaviour became rather bizarre. She became confused and began to abuse laxatives, and in 1973 she was diagnosed as suffering from a drug-induced psychosis and admitted as a voluntary patient to Severalls Hospital, Colchester. She was released soon afterwards, but was readmitted towards the end of 1974. She was again behaving rather strangely and had lost a lot of weight. The diagnosis now was possible organic psychosis. She weighed only six and a half stone.By early March 1975 her weight had increased sufficiently for her doctors no longer to fear for her condition, and she was discharged from hospital. Sadly the improvement did not last, and on 16th April of that year she was found wandering about in her nightdress in a confused and emaciated state. On this occasion she was compulsorily admitted to hospital, and there she remained until her release in November 1981. She made two or three unsuccessful applications to the Mental Health Review Tribunal for her release during her stay there, and towards the end of the period of her detention she was granted periods of home leave in order to ease her re-introduction into ordinary life outside hospital on her eventual release.For all this time she was under the care of Dr Marshall, a consultant psychiatrist who died in March 1994. He caused various tests to be carried out to try and ascertain the reasons for her strange behaviour. In January 1976 a clinical psychologist reported to him that one of the tests she had conducted strongly indicated some frontal lobe damage, which probably caused some disinhibition of impulses. Shortly before this Dr Marshall had reported to the Plaintiff’s mother that the present evidence was that she had suffered brain damage, and that this was not something which was likely to improve. Three and a half years later he wrote of the Plaintiff that it was assumed that she suffered from selective brain damage resulting from excessive purging and dieting: this damage was confined to those areas of her brain which are associated with the finer qualities of moral judgment and insight. On 10th November 1981 Dr Marshall noted in her discharge letter that the Plaintiff’s troubles “had their origin in dieting and excessive purging, later the focus of some considerable interest when it seemed likely that the result had been fairly selective brain damage. Clinically the damage had been frontal lobe, resulting in irresponsible behaviour and a lack of moral judgment”.It is now common ground that the diagnosis of organic brain damage syndrome was mistaken. It is not disputed that as things turned out her behaviour justified her detention in hospital, but it is said that if she had been given the treatment she should have been given, but for this faulty diagnosis, she would have been released much earlier and would not have been left with the stigma of suffering from organic brain damage.The writ in this action was issued on 14th December 1993, over 12 years after her release from hospital. Parts of the Plaintiff’s medical history are pleaded, and the central charge of professional negligence is based on the thesis that the diagnosis of organic brain damage appeared to be based on the psychological tests, and at that time it was not acceptable to make such a diagnosis purely on a verbal-performance deficit. The results of the psychological tests were open to alternative interpretations such as attentional factors, the consequences of the medication she had been abusing, electrolyte disturbance and the medications she had been prescribed as a patient. If she had had organic brain damage, her IQ test performance would radically have deteriorated: instead, it improved. It is suggested that once the diagnosis was made she should have been referred to a neurologist to see if he confirmed the diagnosis of dementia, and that further investigations would have included a brain scan. Reasons are given, by reference to some contemporary notes, for suggesting that dementia was contra-indicated. The most appropriate diagnosis, it is said, was that of an obsessive compulsive disorder with abnormal laxative abuse, but this was not considered. In the original Statement of Claim the reader is referred to the attached medical report for the Particulars of Injury. In a draft of a proposed amendment to that pleading, if the case is allowed to proceed, appear the words “The Plaintiff’s injury was the prolongation of her suffering from probable obsessive compulsive disorder and being treated for organic brain damage”.The Defendants pleaded a very full defence in May 1994. Five pages of the Defence are taken up with the limitation plea, to which I will return in due course. Then after pleading to the medical history, and making it clear that they feel that the Plaintiff’s advisers have dipped selectively into the voluminous notes, the Defendants set out a positive case in response to the allegations of professional negligence. In particular, they say that there was considerable clinical and psychological evidence tending to support the diagnosis of organic brain disease, which was not in any event a definitive diagnosis, and the test results were not the sole basis for the diagnosis. They do not understand what alternative interpretations are contended for the clinical and psychological evidence and the observed behaviour deviations, and they deny that there was any indication for a neurological opinion at any time. They do not understand what other diagnostic tests are said to have been available in those days which they did not perform, and they say that obsessional compulsive disorder could not be considered seriously as part of the differential diagnosis in the absence of any evidence to support such a diagnosis. They rely, finally, on the decisions of the Mental Health Review Tribunal in 1976 and 1979 which upheld their decision to detain the Plaintiff in her own best interests and to protect her from self-harm.I mention these matters only to show that this would be likely to be a formidably difficult case to try, and to try fairly, after so many years, particularly as the consultant psychiatrist against whom the charge of professional negligence is principally aimed is now dead and cannot defend himself: he was, we were told, already in a poor state of health when the writ was served shortly before he died. Still, if the Plaintiff can show that by the operation of the 1980 Act she has a right to bring this action, notwithstanding the difficulties a court would face in its efforts to do justice, she is entitled to do so, and the court would have to try and do its best. That will be the effect of the judge’s order, if it remains intact in this appeal.The judge found that the Plaintiff did not have the requisite knowledge for the purposes of Section 11(4) of the 1980 Act until a date not more than 3 years before she issued her writ in December 1993, so that her action is not statute barred. What is meant by a person’s date of knowledge is explained by Section 14 of the Act which provides, so far as is material:
“(1) In sections 11 and 12 of this Act references to a person’s date of knowledge are references to the date on which he first had knowledge of the following facts - (a) that the injury in question was significant; and (b) that the injury was attributable in whole or in part to the act or omission which is alleged to constitute negligence, nuisance or breach of duty; and (c) the identity of the defendant; ... and knowledge that any acts or omissions did or did not, as a matter of law, involve negligence, nuisance or breach of duty is irrelevant.
(2) For the purpose of this section an injury is significant if the person whose date of knowledge is in question would reasonably have considered 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.(3) 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 medical or other appropriate expert advice which it is reasonable for him to seek; but a person shall not be fixed under this subsection with 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.”No real issues arose about the Plaintiff’s knowledge of the facts referred to in Section 14(1)(a) and (c): the controversy arose over Section 14(1)(b). Before setting out the rival contentions it is necessary to return to the facts.The judge recorded what the Plaintiff told him, and except where it appears that she shifted her evidence under cross-examination, he seems to have accepted what she told him. When she was released from hospital in November 1981 she felt out of touch with the world. She said she received precious little assistance in putting her life together again and was given no support by her husband. She was branded as someone suffering from organic brain damage, and she described to the judge the reasons why she experienced enormous difficulty in finding any employment and the frustrations she felt on that account.By 1985 her marriage had deteriorated to such an extent that she instructed solicitors to institute divorce proceedings. She then found that her husband was taunting her with the brain damage, and she went back to Dr Marshall, who arranged for her to have a further IQ test. The report on that test, dated 10th January 1986, indicated that she did not appear to be suffering from any brain damage. She was found to be without any psychiatric impairment and otherwise fit to be gainfully employed. This was, understandably a profound relief to her. It appears that she had a word over the telephone with Dr Marshall’s secretary, who told her that Dr Marshall accepted that a mistake had been made in the diagnosis. This led to her writing to Dr Marshall on 20th January 1986 to record her gratitude that it had been accepted that a mistake had been made and that she could now go ahead in the knowledge that she was not suffering from the brain damage that she feared she had.The judge describes how the Plaintiff’s attitude towards Dr Marshall began to harden somewhat once she received this good news. She had previously thought of him as rather a harsh person when she had thought about him at all, and she had been disappointed that she had not received some help with housing or with her efforts to find work on her release from hospital. She said she had the consideration to wait till Dr Marshall retired on 20th June 1986 before taking any steps to find out if it was possible to take proceedings against him. She thought it was on the very next day that she went to see Mr Wicks. He was the appropriate partner in the firm of solicitors she had instructed in her divorce proceedings to handle a case like this. In fact Mr Wicks’s records show that she first consulted him in October 1986.In an affidavit sworn in January 1995 the Plaintiff said that she felt a mistake had been made because the psychological tests had been carried out on her while she was under the influence of drugs like Largactil, and she had therefore been branded as being brain damaged inappropriately. She had therefore decided to consult her solicitors with a view to making a claim for compensation. She did not know whether she had a case or not, and in particular she did not know if a mistake in diagnosis had caused her to be detained in hospital when she would not otherwise have been. However, she suspected that Dr Marshall had made a mistake in her case and that he may have been negligent. When cross-examined, she said that she knew that she had suffered in hospital for a long time and that she firmly believed that that was because of the mis-diagnosis. In her mind all her suffering was attributable to the mistaken diagnosis of organic brain damage, and that was her clear view when she saw Mr Wicks in October 1986.Why, then, did a further period of seven years elapse before a writ was issued? A chronology reveals the bare bones of the history of that seven year period:30.1.87 Application for Legal Aid.23.3.87 Legal Aid certificate issued.15.7.88 Letter before action. Request for medical records.19.8.88 GP records received.26.8.88 Hospital records received.24.10.88 Hospital’s solicitors advise that there are no further records.21.2.89 Negative report from expert (Dr Davies).6.12.89 Counsel advises against proceedings.1.3.90 Legal Aid sought for second opinion.20.3.90 Legal Aid for second opinion granted.4.12.90 Instructions sent to second expert (Mr Trimble)22.7.91 Positive report received from second expert.14.12.93 Writ issued.The judge’s main findings in relation to this later period were that Mr Wicks was a thoroughly competent solicitor who had clearly had a great deal of experience in dealing with medical negligence claims: in fact he is one of the Law Society’s referees for judging the competence of other solicitors who wish to be accredited as competent in handling such litigation. He had told the judge he was aware of the potential limitation problems, and he was concerned to issue proceedings by the summer of 1989.It was his practice, which he believed to be good practice, to take full instructions from a client before obtaining medical notes. He found that it was not easy to obtain coherent instructions from the Plaintiff. She was one of the most difficult clients he had had to deal with, and this was one of his most difficult cases. As a consequence, the sessions which were required to prepare a proof of evidence lasted about a year: in July 1988 he was in a position to ask for the hospital and GP records.In the event, he obtained the first independent psychiatric report on 21st February 1989 from an expert he instructed the previous month, and if this had been positive proceedings could have been issued soon afterwards. When he received adverse advice from counsel in December 1989, he accepted that some delay occurred during 1990, the details of which he explained to the judge, before he sent instructions to a second expert. A further period of 7 months passed before that expert reported.For the purposes of this appeal this court is not concerned about the details of the history after 1986. The judge found Mr Wicks had not taken all reasonable steps to obtain the necessary advice, and although a Respondent’s Cross-Notice challenging that finding was filed and served, Mr Maskrey did not in the event rely upon it. The reason he took this course was that the judge did not make a finding of negligence against Mr Wicks. He had merely found that he had not taken all reasonable steps, and the Respondent’s advisers ultimately took the view that it was not realistic to challenge that finding in this court. Her primary case under s 14(3) is, as it was before Collins J, that the slowness of her solicitors cannot be properly attributed to her unless it was so excessively slow that she ought reasonably to have taken steps on her own account to hurry things along. On that aspect of the matter the judge made an express finding that she did not act unreasonably and that she did not personally fail to take all reasonable steps in that she instructed solicitors and co-operated with those solicitors to obtain the necessary advice.The judge held that the Plaintiff did not have actual knowledge for the purposes of Section 14(1) of the 1980 Act that her sufferings were attributable in whole or in part to the misdiagnosis of organic brain damage till she first received Dr Trimble’s report on 22nd July 1991. Although there was no question in her own mind that her sufferings were attributable to the misdiagnosis, she nevertheless did not have the requisite knowledge for the purposes of the Act until she had been told this by an expert, and this did not happen until July 1991. He went on to hold that she could not be fixed with constructive knowledge for the purposes of Section 14(3) because she, the Plaintiff, had taken all reasonable steps to obtain (and, where appropriate, to act on) expert advice, and that she should not be prejudiced because her solicitor had taken such a long time to obtain the advice she needed.What, then, does the law require in order that actual knowledge is established?This branch of the law is already so grossly over-loaded with reported cases, a great many of which have been shown to us or cited by counsel, that I see no reason to add to the overload by citation from earlier decisions. I have considered the judgments of this court in Halford v Brooks [1991] 1 WLR 443; Nash v Eli Lilley & Co [1993] 1 WLR 782; Broadley v Guy Clapham [1993] 4 All ER 439; Dobbie v Medway Health Authority [1994] 1 WLR 1234 ; Smith v Lancashire Health Authority [1995] PIQR 514; and Forbes v Wandsworth Health Authority [1996] 7 Med LR 175 . From these decisions I draw the following principles:(1) The knowledge required to satisfy s 14(1)(b) is a broad knowledge of the essence of the causally relevant act or omission to which the injury is attributable;(2) “Attributable” in this context means “capable of being attributed to”, in the sense of being a real possibility;(3) A plaintiff has the requisite knowledge when she knows enough to make it reasonable for her to begin to investigate whether or not she has a case against the defendant. Another way of putting this is to say that she will have such knowledge if she so firmly believes that her condition is capable of being attributed to an act or omission which she can identify (in broad terms) that she goes to a solicitor to seek advice about making a claim for compensation;(4) On the other hand she will not have the requisite knowledge if she thinks she knows the acts or omissions she should investigate but in fact is barking up the wrong tree: or if her knowledge of what the defendant did or did not do is so vague or general that she cannot fairly be expected to know what she should investigate; or if her state of mind is such that she thinks her condition is capable of being attributed to the act or omission alleged to constitute negligence, but she is not sure about this, and would need to check with an expert before she could be properly said to know that it was.In order to see whether Section 14(1)(b) is satisfied in the present case, it is first necessary to identify the injury of which the plaintiff had actual knowledge for the purpose of Section 14(1)(a). This was not a case of traumatic injury or shock-induced psychiatric injury, such as would not give rise to any particular problems of identification. Any possible claim in trespass was statute-barred and as I have said the initial Statement of Claim simply made a cross-reference to the attached medical report. That medical report shows that the Plaintiff appeared to have been abusing laxatives, and possibly psychiatric medications, in the early 1970s which led to loss of weight and to an electrolyte disturbance which may have brought about temporary alteration of her mental state. It then refers to her prolonged period of hospitalisation, and the clear inference is that this prolonged hospitalisation is being causally connected with, or attributed to, the misdiagnosis which is pleaded in the Statement of Claim. The “injury” has now been more precisely pleaded in the proposed amendment of the Statement of Claim.The judge was at a disadvantage in that he did not have this draft amendment before him, and when he made his finding that the Plaintiff knew of the injury, and that it was significant, he used less precise terms. He said at one point that it was “quite plain that the Plaintiff did know that she was suffering from a condition whilst she was at the hospital”. A little later he said that “she knew that she had been suffering whilst she was under detention, and there is no question as to that”. There was no appeal against that finding.In his admirable submissions to this court Mr Maskrey has seized on passages here and there in the judgment to paint a picture that the Plaintiff was so confused in October 1986 that it was really not fair to attribute to her any knowledge that her suffering during her prolonged hospitalisation (or any part of it) was capable of being attributed to the misdiagnosis. At one point he submitted that the omission that was causally relevant was the failure to treat her properly for her true condition, and that it was not necessary for him to assert that that omission constituted negligence. He resiled from that submission when the clear wording of Section 14(1)(b) was pointed out to him, and in my judgment from a perusal of the Particulars of Negligence in the Statement of Claim it is quite clear that it is the alleged negligence surrounding the diagnosis of organic brain syndrome which constitutes the omission or omissions relied upon as being the cause of the injuries complained of. The failure to provide appropriate treatment was merely an inevitable consequence of the negligence alleged.One passage on which Mr Maskrey relied is to be found at an early stage of the judgment where the judge was referring to an attitude by the Plaintiff “which is coloured by her lack of insight into her condition when she was in the hospital”. Elsewhere, however, the judge found that “she was clear in her mind that the connection was there between the misdiagnosis and what she had suffered”. Notwithstanding this later finding, Mr Maskrey argued that, looking at the judgment as a whole, we should draw a conclusion from the judge’s findings to the effect that his client was so confused when she first went to see Mr Wicks that it would be wrong to hold that the clarity in her mind which the judge describes did not amount to the requisite knowledge for the combined purposes of Section 14(1)(a) and (b).Mr Coghlan has, in my judgment, quite rightly riposted that in the absence of an appeal on this point we cannot go behind the express finding the judge made. Mr Coghlan referred us to the finding of the psychologist in January 1986 that the Plaintiff was without any psychiatric impairment and otherwise fit to be gainfully employed, and said that if the correctness of the judge’s finding on this point had been appealed, he would have wanted to bring before us all the contemporary hospital notes and a transcript of the Plaintiff’s evidence at the hearing to demonstrate that the judge’s finding that she was clear in her mind about the connection between the misdiagnosis and her suffering could not be successfully challenged.On the face of it, therefore, the Plaintiff did know in October 1986 of her “injury” and of the causally relevant “omission” said to constitute negligence and of the possible connection between the two. Why, then, did the judge find that she did not have the requisite knowledge for the purposes of Section 14(1)(b)?He appears to have been influenced in his approach by a single passage in the judgment of this court in N ash v Eli Lilly & Co [1993] 1 WLR 782 at pp 795-6. In that passage Purchas LJ was endeavouring to explain the state of mind that must be attributed to a plaintiff before he can be fixed with knowledge for the purposes of Section 14(1). He contrasted the person who thinks that his condition is capable of being attributed to the act or omission alleged to constitute negligence, but realises that this belief should be confirmed by an expert before he can be said that he knows that it is, with the person whose firm belief is of sufficient certainty to justify obtaining advice about making a claim for compensation: “then such belief is knowledge and the limitation period would begin to run”. (See p 796G).Mr Coghlan submitted that

the judge at first directed himself correctly when he said:

“The issue here is whether the Plaintiff did have knowledge that the injury was possibly attributable as opposed to a belief which can, if you like, be given the adjective ´firm belief’ that it was indeed attributable.”
But he criticises the judge when, after quoting the relevant passages in the judgment of Purchas LJ in Nash , he went on to say:
“It does not seem to me that it is a fair or correct approach to say that because an individual, for reasons which may be good or may be bad, has a certainty in his own mind as to the connection, that in itself means that he has the requisite knowledge if, looked at objectively, it is perfectly plain that no layman would be able to know (as opposed to believe) that that connection existed without the assistance of some expert advice.”
A little earlier the judge had spoken of the solicitor’s perception that he needed confirmation that there was the relevant causal connection, and a little later he added that the question will, in certain circumstances, be whether a particular injury was caused by an operation or was caused by something else. In my judgment, in all these passages the judge is substituting the much tougher test of proof of causation for the much less rigorous statutory test of attributability, in the sense that the identified injury was capable of being attributed to the identified omission. The test is a subjective one: what did the Plaintiff herself know? It is not an objective one: what would have been the reasonable layman’s state of mind in the absence of expert confirmation? After all, the policy of Parliament, in these cases which would otherwise be statute-barred, is to give a plaintiff who has the requisite low level of knowledge three years in which to establish by inquiry whether the identified injury was indeed probably caused by the identified omission and whether the omission (identified initially in broad terms) amounted to actionable negligence. The judge’s approach would be to stop the three years from even starting to run until a much more advanced stage of the investigation had been completed.In Nash the Court of Appeal was concerned with 18 Plaintiffs who claimed that there was a causal connection between their having taken Opren and their experiencing the unpleasant symptoms effects from which they suffered. The facts of the individual cases are much more fully described in the judgments of Hidden J and the Court of Appeal in the Medical Law Reports (see [1991] 2 Med LR 169: [1992] 3 Med LR 233 and [1992] 3 Med LR 353). It is not surprising that in proposing a test to enable the court to identify the relevant state of mind of Plaintiffs in a case like that - they knew the unpleasant symptoms they were suffering but were gradually picking up, from different sources, including television programmes, various pieces of information which helped to inform their minds about a possible connection between their sufferings and the drugs they had taken - this court was at pains to say that the person who thought that her condition was capable of being attributed to the drugs she had taken but realised that her belief should be confirmed by a doctor did not have the requisite knowledge. But that is a long way from the present case where the judge found that the Plaintiff was clear in her mind that the connection was there between the misdiagnosis and what she had suffered when she came to her solicitor for advice on whether and if so how she could claim compensation for what she had suffered. In such a case it is not necessary, nor required by the statute, for a court to embark on a further inquiry whether a rational lay person would have been willing to say that she knew that there was a possible casual connection between her suffering and the omission she had identified without first going to a doctor to seek confirmation.Mr Maskrey advanced to us a number of sophisticated submissions which tended to show that the pragmatic tests designed by this court in recent years to make it easier for lower courts to identify the relatively low level of knowledge required by the statute may not be appropriate in every possible case. However that may be, they are in my judgment both appropriate for use in this case and binding on this court and the judge was wrong to be lured into a more sophisticated inquiry which in the end postponed the date of knowledge for a further four and a half years. I would therefore allow this appeal.In the circumstances there is no need to express a view on the issue of constructive knowledge. It raised very difficult questions of statutory construction which are much better left, so far as this court is concerned, to a case in which they have to be decided. The Law Commission has now embarked on a major review of all aspects of the law of limitation, and the parties would do well if they acquainted the Commission with the problems of statutory interpretation which arose in this case, and which are very evident from the report of the judgment at first instance (see (1996) Med LR 219 at pp 226-229). This will enable the Commission to consult widely as to the policy they should recommend to Parliament in cases where a blameless plaintiff has a painstaking solicitor who does not seek quick expert advice on the question “Is my client’s injury capable of being attributed to the omission which she or I have identified?” - but takes a very long time before asking an expert an infinitely more complicated list of questions which in turn take a very long time to answer. Once the recommended policy is identified it would be helpful if the Commission found ways of expressing it in statutory language less opaque than that contained in s 14(3) of the present Act.

LORD JUSTICE WALLER:

I agree.

LORD JUSTICE NOURSE:

I also agree.

Order

preliminary issue decided in favour of the defendant and action dismissed; appeal allowed with costs - the plaintiff's contribution being assessed at nil, order nisi made against the Legal Aid Fund under section 18 of the Legal Aid Act 1988 and adjourned to the Registrar; costs below to be paid by the plaintiff, not to be enforced without the leave of the court; legal aid taxation of the plaintiff's costs; leave to appeal to the House of Lords refused.

Cited in 1 later judgment