Harrison v Isle of Wight NHS Primary Care Trust [2013] EWHC 442 (QB)

[2013] EWHC 442 (QB)Case No HQ12X01088
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 8 th March 2013
Before
HIS HONOUR JUDGE MCKENNA(SITTING AS A JUDGE OF THE HIGH COURT)
Between
Mary Theresa HarrisonClaimantIsle of Wight NHS Primary Care TrustDefendant
Simon Wheatley (instructed by Osborne Morris and Morgan, Danbury House, West Street, Leighton Buzzard, Beds LU7 1EP) for ClaimantJudith Rogerson (instructed by DAC Beachcroft LLP, Winton House, St Peter Street, Winchester, SO23 8BW) for DefendantHearing Hearing dates: 25 and 26 February 2013
Judgment

HHJ McKenna :

[1]In this action, commenced by a claim form dated 19 March 2012, the claimant, Mary Theresa Harrison, seeks damages from the Isle of Wight NHS Primary Care Trust (“the defendant”) relating to damage to her deltoid muscle and right arm/shoulder which, she says, was caused by the negligence of surgeons employed by the defendant, who carried out an operation on the claimant on 26 October 2005. In particular, it is said that the surgeons caused the deltoid muscle to be detached from the acromion and failed to carry out any subsequent re-attachment or repair.[2]The defendant denies liability in any event and asserts that the proceedings were issued outside the primary limitation period, and that the claim is therefore statute barred, the claimant’s date of knowledge for the purposes of section 14 of the Limitation Act 1980 (“the Act”) being more than three years before the date of issue.[3]The claimant, for her part, alleges that she did not have “knowledge” for the purposes of sections 11 and 14 of the Act until 16 June 2009 at the earliest. This was the date on which a further procedure was carried out on the claimant’s shoulder and the operating surgeon, Mr Taylor, discovered/confirmed that the deltoid muscle was detached from the acromion bone. Prior to the involvement of Mr Taylor, investigations into the claimant’s continuing disability in her right shoulder had failed to establish the root cause of the problem. In the alternative, the claimant seeks relief under section 33 of the Act.[4]The issue of limitation was ordered to be tried as a preliminary issue and the court has heard evidence from the claimant herself and from her solicitor, Helen Marie Thompson. The defendant has not sought to call any evidence of its own.

Background chronology

[5]On 26 October 2005, the claimant underwent a surgical procedure to relieve shoulder pain which involved the “open decompression of the right shoulder and excision of the lateral clavicle”. It was conducted by Mr Ng and Mr Hobbs, surgeons in the employ of the defendant at St Mary’s Hospital, Newport, Isle of Wight.[6]On 12 December 2005, Mr Hobbs noted that: “there is no evidence of any complication and her range of movements are progressing quite well, though she is pretty stuck at 90 degrees of flection…see her in three months time” (bundle, page 89).[7]On 13 March 2006, Mr Hobbs saw her again and noted as follows: “this lady is making very slow progress following her open shoulder decompression. It is now four and a half months and she still only demonstrates 90 degrees of flection. She can get her hand to behind her waist and she has good external rotation. I was a little concerned about the appearance of some deltoid wasting in the middle third, but the anterior third contracts well, and it cannot be an axillary nerve lesion. It does not appear to be a deltoid dehiscence either, and I can only assume that it is post-operative muscle wasting. There is nothing I can do to hasten her progress, and I have simply asked to review her in three months. She would like to consider having something done to her left shoulder but this would also have to be an open decompression and I think we should wait for a successful result on the right first”. (bundle page 91)[8]On 8 May 2006, the claimant was seen again by a member of Mr Hobbs’ team. This really denotes the end of the defendant’s clinicians’ involvement with the claimant, who then moved from the Isle of Wight back to the mainland.[9]On 17 August 2006, the claimant was seen by Mr Sinha, a specialist registrar to Mr McElroy, a consultant surgeon in trauma and orthopaedics at Stoke Mandeville hospital. He reported: “On examination, she has a scar of deltoid splitting approach over the right shoulder. Over this area and even the slightest touch produces discomfort. She is unable to initiate abduction but external rotation is MRC grade IV, equal to the other side. She is unable to hold her arm in elevation or abduction. The deltoid contraction is very poor. However, sensation over the badge area is intact. X-rays of her right shoulder today show an adequate AC joint excision. We suspect that she was a non-functional cuff and also deltoid dehiscence. I have discussed her with Mr McElroy who also saw her in the clinic today. We are arranging for her to have an MRI scan of the right shoulder, which will provide us with more information regarding the integrity of the cuff and the deltoid. We will review her with the results of this. Mr McElroy did explain to her that the solution to these problems are not going to be easy and there are certainly no obvious surgical options here”. (bundle page 94)[10]In her evidence, the claimant indicated that she had asked Mr McElroy if he thought that Mr Hobbs had made a mess of the surgery, and he said that sometimes there will be occasions when an operation does not go according to plan. She was told that he felt that they had taken away too much bone.[11]On 18 October 2006, the claimant underwent an MRI scan of her right shoulder. It was reported to show “there is no evidence of deltoid devitalisation…there is no evidence of deltoid dehiscence” (bundle, pages 96 and 97).[12]On 22 November 2006, the claimant approached solicitors, Coffin Mew and Clover (“CMC”) by email, which included the following: “Due to having surgery on my right shoulder in October 2005 at St Mary’s Hospital on the Isle of Wight by consultant Mr Hobbs. This operation was to ease the pain and lack of movement I had. This has not happened and I am now left with a shoulder that is not only painful all the time and with very little movement in that I cannot lift my arm stop. It is very weak and now very misshapen and I am now on constant painkillers. I have never had an explanation of what exactly was done during surgery. Unfortunately, I had to sell my property on the Isle of Wight as I was unable to pay the mortgage and would have been under threat of repossession. I have now been unable to return to work for over a year.” (Bundle, page 109).[13]On 8 December 2006, the claimant was seen by Mr McElroy about the MRI scan results. He wrote as follows: “she appears to have allodynia over the scar and around the shoulder. There is some question also about whether she has had an excessive excision of acromion and I am investigating this at present”. (bundle page 101)[14]In the event, that suspicion was not confirmed by the MRI imaging.[15]In January 2007 the claimant formally instructed CMC because, she said, she wondered whether there was something wrong with the operation and that was probably something to do with bone.[16]In February 2007, the claimant underwent a specialist 3D CT reconstruction scan of both shoulders as requested by Mr McElroy. The scan was reported as showing no abnormal findings relating to the right shoulder (bundle, page 103).[17]On 30 March 2007, the claimant saw Mr McElroy regarding the CT scan results. He wrote the following: “this lady’s CT scan shows an adequate acromion with no evidence of excessive excision at the time of her open surgery. The clavicular excision is ideal. The deltoid bulk is normal on her MRI scan and her cuff tendons are intact although there is a bit of thinning of supra spinatus. She continues to have allodynia in the right shoulder even on gentle stroking of the skin. She has been seen by Krishna Bakhshi, who has instituted the treatment plan for this. Her left shoulder is becoming increasingly symptomatic and she may well require surgery on the left side in the future. I have advised her to finish Krishna Bakhshi’s treatment and I will review her progress in six months time with X-rays of her left shoulder on arrival”. (bundle page 104)[18]On 27 November 2007, the claimant provided a detailed witness statement to her solicitors (bundle page 158).[19]On 29 April 2008, CMC obtained a report from a consultant orthopaedic surgeon, Mr Constant. In a section headed “issues of liability” Mr Constant opined as follows:- “The surgery in October 2005 appears to have excised an excessive and unnecessary amount of the distal clavicle and a significant amount of the acromion. It is not clear from the records as to why this was so. It is clear that there was excessive and unnecessary removal of bone. While on the face of it, this was sub-standard surgery, it should be noted that there is a body of orthopaedic surgeons who still consider a total acromionectomy to be a reasonable operation, and there are examples of patients who have had this extensive excisional surgery of this kind with a good outcome. It may therefore be difficult to establish that the quality of the surgery was indeed substandard on Bolam” (Bundle, pages 187 – 188).[20]On 27 August 2008, CMC sent a letter of claim to the defendant (bundle, page 193), which included the allegation under the heading “breach of duty”: “4. The surgery in October 2005 excised an excessive and unnecessary amount of the distal clavicle and a significant amount of the acromion, and this fell below an acceptable standard” (Bundle, page 195).[21]On 13 October 2008, in a telephone call (confirmed in a letter dated 16 October 2008), the parties’ solicitors agreed to extend limitation to 20 January 2009 (bundle, page 398).[22]On 22 October 2008, the defendant sent a letter of response to the letter of claim denying liability (bundle, page 197).[23]On 30 December 2008, the claimant’s solicitors requested a further extension to the limitation period to 31 March 2009 (bundle, page 399), which request was acceded to on 7 January 2009 (bundle, page 400).[24]On 13 January 2009, the claimant was referred back for further orthopaedic review, this time to Mr Taylor, a consultant orthopaedic surgeon at Wycombe Hospital (bundle, page 144).[25]On 26 January 2009, CMC held a telephone conference with counsel then instructed on behalf of the claimant and Mr Constant to discuss the claimant’s case and Mr Constant’s opinion. The claimant also attended the conference by telephone. The transcript is at bundle pages 201 and following, and includes the following exchange at page 224 and 225:- “P Sparks: Is there any other known complications of this procedure that are specific to it? Mr Constant: Not not really, no. P Sparks: Okay. Mr Constant: No. We have, I mean there, there is in, in, in the body generally, there’s a lot of bone that can be removed without particularly causing a major problem. P Sparks: Yeah. Okay. So it’s really this issue about the deltoid muscle? Mr Constant: Correct. P Sparks: And do you think that’s the complication that Mrs Harrison has suffered? Mr Constant: No, no. I mean, I’ve, I’ve listed all the different issues and complications that she had in my report. There are quite a few of them. P Sparks: Yes. Mr Constant: None of them are specific to the fact that an acromionectomy as against an acromioplasty was undertaken.” P Sparks: Yeah. Okay. So it’s really this issue about the deltoid muscle?

P Sparks: And do you think that’s the complication that Mrs Harrison has suffered?

[26]On 10 February 2009, counsel provided written advice (bundle, page 264) focusing on the procedure for acromionectomy (265) and noting that the decision to carry out the acromionectomy involving either extensive loss of bone was Bolam defensible. Accordingly, the claimant was advised that there was no likelihood of establishing negligence in a claim, and the retainer came to an end.[27]On 20 March 2009, the claimant was seen by Mr Taylor. Following examination, he wrote (bundle, page 146): “On examination today she can only lift the right arm to 90 degrees with a lot of pain…There is an obvious defect in her deltoid muscle which is very noticeable when she abducts the arm. I am not sure whether it is reattached to the acromion…It is very tempting to consider a surgical exploration and reattachment of the deltoid…There is, I feel, a 50/50 chance of helping her and for that reason we have actually decided to go ahead. I would start by arthroscoping the shoulder, and then re-opening her surgical incision, assessing the state of the deltoid, and attempting to re-attach it to the remnants of the acromion”.[28]On 22 March 2009 the claimant wrote to CMC the following (bundle, page 274):
“Just thought I would let you know how the review on my right shoulder went. I was seen on Friday by Mr Taylor having been referred by Dr Bakhshi. I was completely shocked at this appointment to find, after examination and X-rays, that my deltoid muscle is not attached completely. I do not know if this is because of the previous surgery. Mr Taylor did ask how long I had had the dent in the top of my right arm and I explained that it has been like that since the surgery in 2005. I do wonder if Mr Constant had seen me personally whether he would have come to the same conclusion. After a long discussion with Mr Taylor, his advice is to have the shoulder opened up and to try and attach the deltoid muscle. The only problem he could see was that there would not be enough bone for him to do this….”
[29]On 23 March 2009, the claimant’s solicitors gave the claimant the following advice by email in response to the claimant’s email of 22 March 2009:- “Thank you for your email. As discussed in our telephone conversation today, I would be grateful if you would let me know if you wish me to investigate your claim further in view of your recent consultation with Mr Taylor. I confirm that, to investigate this issue, I will need to obtain your medical records and a further opinion from Mr Constant. As I explained, the time limit in which I have to issue proceedings expires on 31 March 2009 and a claim form will need to be issued by this date otherwise your claim will lapse. Therefore, I will also need to issue proceedings by 31 March 2009. As your insurers have withdrawn funding, they may not fund the above work, and if they are not prepared to meet the costs, you would need to pay these costs yourself. I would estimate that these costs could be in the region of £600 - £800. Once you have had the opportunity to consider matters, I would be grateful if you could let me know urgently, preferably by tomorrow, if you wish me to proceed as outlined above.”[30]On 27 March 2009, the claimant’s solicitors sought a further extension to the limitation period (bundle, page 401), a request which went unanswered.[31]On 16 June 2009, the claimant underwent surgical exploration of her right shoulder, following which Mr Taylor noted ( bundle page 154):
“Palpable deltoid defect…deltoid detached from acromion remnant…”
[32]On 19 March 2012, the claim was issued.[33]The Particulars of Claim dated 9 July 2012 under the heading “negligence” pleaded the claimant’s case as follows: “Accordingly, the defendant was negligent and in breach of duty to the claimant by the procedure carried out on 26 October 2005 as follows:8.1 Caused excess acromion to be re-sected, including the origin of the middle deltoid, thereby causing this muscle to lose its attachment;8.2 Caused or permitted the deltoid muscle to be detached from the acromion, without carrying out any subsequent reattachment or repair;8.3 Removed the bony insertion of the deltoid, thereby causing detachment of the middle third of the deltoid;8.4 Re-secting the acromion so that it violated the attachment of the deltoid (which must be avoided in acromioplasty);8.5 Carrying out the acromion re-section beyond the removal of any anterior projection of the acromion and its under-surface and to the extent that it removed bone extending back to include a significant part of the lateral border. It is the claimant’s case that none of this should have been removed as a full thickness excision.8.6 Excising the distal two-thirds of the acromion…” (bundle pages 384 and 385)

The law

[34]Section 11(4) of the Act provides that, in personal injury claims:
“the period applicable is three years from (a) the date on which the cause of action accrued; or (b) the date of knowledge (if later) of the person injured”
[35]The date of knowledge for the purposes of section 11 is defined in section 14 as follows:
“(1) Subject to sub-section (1A) below, in sections 11 and 12 of the 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 (d) 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; 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 purposes 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 held 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.”
[36]During the course of argument I was taken to a number of authorities of relevance to the issue of date of knowledge and attributability. Thus in Halford v. Brookes (1991)1 WLR 428 at 443 at letter C Lord Donaldson MR quoted the following passage from Davis v Ministry of Defence (1985) CA Transcript No 413 ( unreported) from the judgment of May L J :
“‘Knowledge’ is an ordinary English word with a clear meaning to which one must give full effect: reasonable belief or suspicion is not enough.”
[37]He continued as follows:
“This leaves entirely open what is meant by having knowledge in the context of other paragraphs such as paragraph (c) which refers to the identity of the defendant. The word has to be construed in the context of the purpose of the section, which is to determine a period of time within which the plaintiff can be required to start any proceedings. In this context ‘knowledge’ clearly does not mean ‘know for certain and beyond possibility of contradiction’. It does, however, mean ‘know with sufficient confidence to justify embarking on the preliminaries to the issue a writ such as submitting a claim to the proposed defendant, taking legal and other advice and collecting evidence’ Suspicion, particularly if it is vague and unsupported, will indeed not be enough, but reasonable belief will normally suffice.”
[38]In Nash v Eli Lilly & Co 1WLR 782 the Court of Appeal returned to this issue and Purchas LJ, delivering the judgment of the court, and after reviewing the authorities and after commenting that the court did not find a great deal of assistance from the judgment of May LJ in Davis because of the very different nature of the hearing (an appeal from a strike out) concluded as follows at page 795 at letter D:- “Moreover, the facts of the case were, as Lord Donaldson MR said in Halford v Brookes (1991) 1 WLR 428, 442, highly unusual. The decision does, however, appear to regard as arguable the contention that, if a claimant is shown to have had knowledge, as we understand the meaning of that word in this context, that his injury is attributable to the act or omission of the defendant, the subsequent obtaining of expert advice for the purpose of legal proceedings which says that the injury is not so attributable, could retrospectively cause him never to have had such knowledge. We do not accept that that contention is arguable. It seems to us to be in conflict with the words of the statute. The answer to the question, we think, is to be found in the way in which the court should, on the facts, approach and decide the question whether and when a claimant’s state of mind amounted to knowledge for the purposes of sections 11 and 14 of the Act. As we have said above, whether a claimant has knowledge depends both upon the information he has received and upon what he makes of it. If it appears that a claimant, while believing that his injury is attributable to the act or omission of the defendant, realises that his belief requires expert confirmation before he acquires such a degree of certainty of belief as amounts to knowledge, then he will not have knowledge until the confirmation is obtained. Frequently as it seems to us it will be safe for the court to proceed upon the basis that the claimant did realise that he required confirmation if he acted in a manner consistent with that state of mind even if he is, as he may frequently be, unable to recall with any degree of precision what his state of mind was. Conclusions as to the claimant’s state of mind will, we think, usually be more securely based upon inference from conduct in the known circumstances than from a claimant’s later assertion as to how he now recalls his then state of mind as between, for example, belief or knowledge. We add that we have difficulty perceiving how in any case where a claimant has sought advice and taken proceedings, it can rightly be said that the claimant had not then had relevant knowledge”[39]On the issue of attributability, Purchas LJ went on as follows at page 797 at letter A: “If it has been shown that there was knowledge of the existence of a significant injury, it is then necessary to turn to consider whether a claimant had knowledge that the injury was attributable, in whole or in part, to the act or omission of the relevant defendant or defendants. This involves two requirements, knowledge of the nature of the act or omission and of the identity of the defendant.[40]In Spargo v North Essex District Health Authority (1997) PIQR p235 at page 242 Brooke LJ set out the following principles in respect of the test under section 14:- “(1) The knowledge required to satisfy section 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 it, and would need to check with an expert before she could be properly said to know that it was”[41]In Driscoll-Varley v Parkside Health Authority (1991) (2) MED LR 346, the claimant was assaulted by her husband and suffered injuries which were then treated by the hospital. The assault took place on the 18th of April 1984 but thereafter the claimant was subjected to a number of courses of treatment. Hidden J determined that it was not until June 1988 that the claimant had sufficient knowledge for the purposes of the Act. His analysis was as follows:
“For my part I look at the wording of section 14(1)(b), knowledge “that the injury was attributable in whole or in part to the act or omission which is alleged to cause negligence, nuisance or breach of duty”
. Mr Grace submits that that knowledge was acquired by the plaintiff in September 1985 when she discovered from what she was told by Mr Johnson or Mr Bromage that the leg had not been properly set and that there was dead bone. He says that the knowledge runs from that time and that it does not really matter that the pleading in different in this format than would have been the pleading following the letter of 10th November 1987 with the erroneous charges. For the purposes of his submission he really equates the leg not being properly set and having dead bone with the current allegation of the mobilisation of the patient at least nine days too early. I cannot accept the exercise involved in forming that equation. To me no general word such as “attributable to negligence in treatment at the hospital” would satisfy the careful test in section 14(1)(b) which refers in terms to the fact that the injury was attributable to the act or omission which is alleged to constitute negligence. I find that it was not until 30th June 1988 that the plaintiff was aware that her injury, in the sense of failure of the damage to the leg to respond to treatment in a normal and satisfactory manner and time span, was capable of being attributed in whole or in part to the act or omission which she now alleges to constitute negligence. I find that that act or omission to be specifically the premature immobilisation of the plaintiff who has only suffered such a break as this a mere twelve days before. I find that the test is not; was there some negligence in the treatment at St Mary’s Hospital which cannot be properly identified but which must have happened?” I find that it is not: was the leg at some stage incorrectly set? The act or omission caught by the statute is the act or omission in relation to premature immobilisation. It follows that, so far as section 14(1) is concerned and so far as the plaintiff’s actual knowledge is concerned, I find that that actual knowledge did not come until 30th June 1988 and that therefore that knowledge is within the period of issue of the second writ.”[42]That decision was characterised by Hoffmann LJ as he then was in Broadley v Guy Clapham & Co (1994) 4 All ER 439 as a case of barking up the wrong tree; that is to say the fourth limb of Brooke LJ’s analysis in Spargo.[43]In the decision of Jupp J in Bristow v Grout The Times LR 3 November 1986 it was held that:- “It (section 14) contemplated cases where more than one injury arose from one act or omission, one or more of which did not become apparent, or appear significant until some time after the accident. In such a case the limitation period did not begin to run until one of those injuries was first known to be significant, as defined by section 14(2), but once it had begun to run, it applied in respect of all injuries”[44]Finally, I was also taken to the speeches of Lords Wilson and Walker in A B and others v Ministry of Defence (2013) 1 AC 78 where the above authorities were discussed.

Discussion

[45]It was submitted on behalf of the claimant that the essence of her claim to adopt the words of Purchas LJ in Nash is the detachment of the deltoid muscle and that it is that injury which caused the damage which the claimant suffered, all of which was resolved by the surgery undertaken by Mr Taylor in 2009.[46]Whilst possible involvement of the deltoid was raised during the various investigations undertaken to which I have referred, detachment of the deltoid muscle from the acromion was never confirmed as the cause of the claimant’s continuing disability and in those circumstances, since none of the medical experts, whether employed by the defendant or those subsequently involved, were able to identify detachment of the deltoid muscle, the claimant did not and could not have had knowledge for the purposes of section 11 that her injury constituted the detachment of the deltoid muscle. Reliance is placed on the approach adopted by Hidden J in Driscoll-Varley. Thus it was not until after Mr Taylor’s operation of the 16th June 2009 that the claimant was aware that her injury, i.e. the detachment of the deltoid muscle, was capable of being attributed in whole or in part to the act or omission which she now alleges to constitute the negligence. Until then, the claimant could be said to have a concern or indeed suspicion as to her operation but no knowledge for the purpose of the Act. True it was that she had instructed solicitors, sought expert advice and even gone so far as to send a letter of claim but all of that effort was directed to the question of excessive excise of bone, where the expert advice ultimately concluded there was no attributable injury.[47]By contrast it was submitted on behalf of the defendant that the essence of the claim is, was and always had been the resecting of excess acromion hence the allegation of negligence in the Particulars of Claim at page 384 and the opinion of Mr Limb at paragraph 3.16 (page 311) and in those circumstances the claimant had the requisite knowledge within the meaning of section 11 of the Act, arguable by August 2006, failing which by November 2006 when she first contacted solicitors, by which time it is said she satisfied the first three limbs of Spargo alternatively by April 2008 when she received Mr Constance’s opinion or at the very latest by August 2008 when the first letter of claim was sent.[48]It was submitted on behalf of the defendant that the alternative argument put forward on the claimant’s behalf that time did not begin to run until she became aware of the injury to the deltoid muscle which was a different problem to the suggestion of dissection of excess acromion was flawed on a number of grounds:- a) It was incorrect to say that the detachment of the deltoid was a distinct injury to the over resection of the acromion, the former being a consequence of the latter rather than something completely separate. b) It is inconsistent with the decision in Bristow v Grout since when the claimant first approached her first solicitors she was aware of or at least suspected that she had suffered an injury to her shoulder as a result of the surgery in 2005. The fact that she might only have discovered the existence of the deltoid detachment in 2009 was irrelevant since, once she was aware that she had suffered an injury time had begun to run. c) The question of whether the claimant had suffered an injury to her deltoid muscle was considered both by the treating clinicians and those investigating the claimant’s claim. The injury was there to be found and therefore, if the claimant’s claim was not properly investigated, that is a matter to be taken up with her former representatives and not a reason for asserting that time had not started to run. d) It is plain from the correspondence between CMC and the defendant that at that time that CMC had accepted that limitation had started to run and was soon to expire.[49]For my part I accept the submissions made on behalf of the claimant and reject those made on behalf of the defendant. As it seems to me, the essence of the claim is in fact the detachment of the deltoid muscle which I conclude was a distinct injury. It is that act or omission and not the over resection of the acromion which caused the injuries suffered by the claimant. As counsel for the claimant put it in his closing argument, any injury in respect of the over resection of the acromion was not significant and did not result in any damage. Were it to have been possible to replace the excess bone removed, that would not have resolved the damage. On the other hand, the injury to the deltoid muscle was significant because it caused all the symptoms being suffered by the claimant and its repair, effected by Mr Taylor, resolved all the problems being experienced by the claimant. The earlier allegation put forward by CMC can in my judgment properly be characterised as an example of the claimant barking up the wrong tree. True it was that she suspected that her condition was capable of being attributed to the act or omission alleged to constitute negligence but she was not sure about it and had to have the opinion of Mr Taylor before she could properly be said to know that it was.[50]As it seems to me Bristow v Grout can properly be distinguished on its facts from the instant case. That case involved a claimant who had sustained several injuries in an accident and had settled a claim in respect of one of those injuries. In those circumstances it is perhaps not surprising that Jupp J concluded that the claimant could not thereafter bring a claim in respect of any other injury which he said arose from the same accident if the settlement had constituted an accord and satisfaction. By contrast, in the instant case, there was one injury albeit with a number of possible causes. Attributability was the issue until Mr Taylor’s intervention resolved it. To my mind the analogy drawn with Driscoll-Varley is more appropriate although plainly there are differences in the respective factual matrices of the two cases since in the instant case there was one operation which was in some way suspected to be the cause whereas in the Driscoll-Varley case it was post operative care and in particular premature immobilisation and not the operation itself that was the act or omission.[51]I do not accept, on the facts of this case, that the fact that the claimant had instructed solicitors, that they had sent a letter of claim or indeed that they had entered into correspondence about extensions to the limitation period demonstrates that the claimant had acquired the necessary knowledge for the purposes of s.11 since throughout the period in question the claimant and her advisers were pursuing a line of enquiry which proved abortive, that is to say they were barking up the wrong tree.[52]Nor, to my mind, is there anything in the suggestion that the claimant should have carried out further investigations since the true cause of injury was there to be found. The pertinent fact of the matter is that a number of investigations were undertaken both by the defendant’s treating clinicians and others as I have recorded and the true cause was not discovered by any of them until the propitious arrival on the scene of Mr Taylor in early 2009.[53]It follows in my judgment that the relevant date of knowledge for the purposes of sections 11 and 14 of the Act is 16th June 2009 and the claim is accordingly not statute-barred.[54]In the light of my findings, there is no need for me to go on and consider the submissions made in respect of relief under section 33 of the Act. Had I had to do so, I would have concluded that this was a case where it would have been just and equitable, having regard to all the circumstances of the case to disapply the three year limitation period under section 11 for a number of reasons including, briefly atated :- i) The delay in arriving at a proper diagnosis of the cause of the claimant’s pain was not of the claimant’s making. It was not until November 2011 that Mr Limb was in a position to express a concluded view; the letter of claim was dispatched reasonably swiftly thereafter on 6th January 2012 and the delay in instructing solicitors between March and December 2009 was readily explicable in the light of the claimant’s inability to afford legal representation. ii) There was no evidence before the court to suggest that there was any prejudice to the defendant and, of course, preliminary investigations, at least, had been undertaken following receipt of the first letter of claim. iii) In the circumstances of this case the loss to the claimant of the right of action would be a harsh penalty indeed so far as the claimant was concerned whilst a windfall so far as the defendant was concerned.[55]I trust that counsel will be able to agree the terms of an order which reflects the substance of the judgment which could usefully include directions for the future conduct of the claim.[56]Finally, I would like to take this opportunity to express my gratitude to both counsel for the way in which they conducted the case and for their very helpful skeleton arguments and their focussed closing submissions.

Cited in 1 later judgment