Rayner v Wolferstans (A Firm) & Anor [2015] EWHC 2957 (QB)

Case No HQ13X04367

[2015] EWHC 2957 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

CENTRAL DISTRICT REGISTRY

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 23/10/2015

Before

MR JUSTICE WILKIE

Between

KARA RAYNERClaimant

WOLFERSTANS (A Firm)1 st Defendant

MEDWAY NHS FOUNDATION TRUST2 nd Defendant

Mr Picton QC (instructed by Walker Smith Way) for Claimant

Mr Pooles QC and Miss Ferguson (instructed by Bond Dickinson LLP) for 1 st Defendant

Miss Woodbridge (instructed by Kennedys) for 2 nd Defendant

Hearing Hearing dates: 12 th– 13 th October 2015

Judgment

The Honourable Mr Justice Wilkie :

INTRODUCTION AND LITIGATION BACKGROUND

[1]The claimant was a patient of the 2nd defendant (“Medway”) when she gave birth to her second child at Medway Maritime Hospital on 5th January 2004. During the birth she was given an epidural. She asserted this led to immediate pain and discomfort. She was discharged home on 9th January she states without having had proper consideration of her symptoms. Having been readmitted on 28th January she was diagnosed on 30th January as having developed hydrocephalus. She had surgery at King’s College Hospital in London on 31st January when a ventriculo-peritoneal shunt was inserted. She had from the 5th January neurological symptoms in her lower spine and legs. She has continued to suffer a significant disability since that date. Her claim is that these injuries were said to be due to the negligence of Medway through its anaesthetic team who administered the epidural.

[2]In June 2004 the claimant retained the 1st defendant firm (“Wolferstans”) to act as Solicitors for her to investigate a prospective claim against Medway. Wolferstans obtained public funding for the investigation from the Legal Aid Board and instructed medical experts: Professor Schapira, a consultant neurologist; and Dr Bogod, a consultant anaesthetist. Professor Schapira advised in February 2006 that it was likely that the claimant had sustained damage during the epidural procedure which either directly, or indirectly, led to the development of hydrocephalus. He suggested that further investigations be carried out, which would include an MRI scan of the spine. Dr Bogod, a consultant anaesthetist, expressed the view, by his report of 1st April 2006 that the claimant had probably suffered a dural puncture. Dr Bogod said that this explanation, which was unlikely to involve any negligence on the part of the clinician involved, could potentially be overridden if an MRI scan revealed evidence of direct damage to the spinal cord by the epidural needle, in which case, he advised, there would be negligence present.

[3]Wolferstans took steps to arrange an MRI scan. A number of appointments were made for the claimant to attend, which she cancelled or failed to attend. Eventually, she attended in January 2007, but the scan could not go ahead as she was in too much pain, was unable to lie still and was experiencing claustrophobia. There were discussions as to how a general anaesthetic might assist her to have a scan. A further scan was arranged during April 2007 which, again, was not successfully completed.

[4]During this period Wolferstans obtained from Medway extensions to the primary limitation period which, it was believed, would expire on 5th January 2007, three years from the date of the epidural. However, without any further evidence from an MRI scan, neither expert felt able to support a case for negligence. On 26th July 2007, Wolferstans advised the claimant that she should discontinue her claim and that they would inform the Legal Aid Board so that public funding would be withdrawn. The claimant provided such instructions on or about 15th August 2007 and on 7th September 2007 public funding was withdrawn. The final agreed extension to the primary limitation period expired on 7th September 2007.

[5]The claimant continued to need treatment for her conditions. She was successfully given an MRI scan in August 2010. That scan resulted in a diagnosis of arachnoiditis, inflammation of the arachnoid membrane, one of the membranes surrounding and protecting the nerves of the central nervous system, including the brain and spinal cord. This was the first time that the claimant became aware of this condition, which was not caused by direct trauma to the spinal cord.

[6]In August 2010, the claimant retained her current solicitors but did not then pursue a claim against Medway. She had been advised and acted on the basis that her claim against Medway was statute barred. She was minded to pursue a professional negligence claim against Wolferstans. Medical reports were obtained to that end including a second report from Dr Bogod dated 19th April 2012. This report first raised the suggestion that the probable cause of the arachnoiditis was the introduction of a contaminant, chlorhexidine, during the epidural procedure. Dr Bogod considered that this would lead to a conclusion of negligence on the part of Medway.

[7]The claimant issued proceedings against Wolferstans on 2nd September 2013 alleging that, due to Wolferstans’ negligence and/or breach of contract, she had lost the chance to recover damages from Medway. Wolferstans has defended that case, amongst other ways, on the basis that no such loss of chance had occurred at that point. They say that, as the claimant had three years to bring a claim from her date of knowledge pursuant to section 11(4)(a) of the Limitation Act 1980 and as such knowledge arose no earlier than 19th April 2012, the date of Dr Bogod’s second report, her claim against Medway remained valid and live at the date of issue of the proceedings against Wolferstans.

[8]The claimant issued a claim form against Medway on 28th August 2014 reflecting the outcome of the report of Dr Bogod dated 19th April 2012. Medway defends that claim on the basis that the claim is statute barred, that the date of knowledge for the purposes of section 11(4)(a) of the Limitation Act was January 2004, when the claimant was aware that she had suffered a significant injury that she attributed to the administration of the epidural or, by the latest, the 22nd July 2004 when she signed her statement supporting her claim for the purposes of obtaining Legal Aid.

[9]On the assumption that the claimant’s claim against Medway was out of time, and on the footing that a claim against Medway would be made out, Wolferstans have also pleaded that the claimant has failed to mitigate her loss by failing to apply to the Court, pursuant to section 33 of the Limitation Act 1980, requesting the Court to exercise its discretion to permit the claimant to pursue its claim against Medway, by disapplying s. 11 of the Limitation Act. The claimant has made such an application.

[10]By an order of Master McCloud dated 6th February 2015, the claimant’s action against Medway was consolidated with her action against Wolferstans and provision was made for a case management conference to be held on the 18th May 2015 to consider listing preliminary issues in relation to limitation and the application of section 33.

[11]Master McCloud made directions in an order dated 8th June 2015 including the following paragraph defining the preliminary issues as follows:

“For the purposes of sections 11(4) and 14(1) of the Limitation Act 1980 when did the claimant acquire the requisite knowledge for the purpose of her claim against the Medway NHS Trust and in particular 1. Did the claimant acquire such knowledge by no later than 22nd July 2004? 2. Did the claimant acquire such knowledge some time between 16th August 2011 and 19th April 2012? 3. Did the claimant acquire such knowledge on a date prior to 2nd September 2010 being three years prior to the issue of the claim form against Wolferstans? 4. At the date of issue of the claim form against Wolferstans on 2nd September 2013 had the claimant lost the chance to pursue her claim against the Medway? 5. At the date of issue of the claim on 2nd September 2013 was the claim against Wolferstans in contract statute barred pursuant to section 5 of the Limitation Act?”

Master McCloud also ordered that these preliminary issues be listed together with the claimant’s application under section 33 of the Limitation Act 1980.

THE RELEVANT STATUTE AND CASE LAW

[12]The Limitation Act 1980 section 11 provides:

“11(1) This section applies to any application for damages for negligence, nuisance or breach of duty … where the damages claimed by the plaintiff for the negligence, nuisance or breach of duty consist of or include damages in respect of personal injuries to the plaintiff or any other person … (2) None of the time limits given in the preceding provisions of this Act shall apply to an action to which this section applies (3) An action to which this section applies shall not be brought after the expiration of the period applicable in accordance with sub-section (4) or (5) below (4) Except where sub-section (5) below applies, 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 … ”

Section 14 of the 1980 Act provides for the date of knowledge for the purposes of section 11. It provides as follows “14(1) … in sections 11 … 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; (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 the defendant who did not dispute liability and is 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 sub-section 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.” (a) The date on which the cause of action accrued; or (b) The date of knowledge (if later) of the person injured … ” 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 sub-section 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.”

[13]There is no doubt that the date on which the cause of action accrued was the 5th January 2004. The issue before me has been the date of knowledge of the claimant, if later.

[14]Nor is it in issue that the date on which the claimant first had knowledge of: the fact that the injury in question was significant; the identity of the defendant; and the identity of the anaesthetist engaged by the defendant whose act or omission was alleged to be negligent; was on or shortly after 5th January 2004. The focus of the preliminary issue concerning section 11 and section 14 is the date of knowledge that the injury was attributable, in whole or in part, to the act or omission which is alleged to have constituted negligence, nuisance or breach of duty. I have been referred to a number of authorities to enable me to address this issue and I summarise them below.

[15]In Spargo v North Essex District Health Authority 1997 PIQR page 235 Lord Justice Brook formulated the following four propositions. “(1) The knowledge required to satisfy section 14(1) 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 advise about making a claim for compensation; (4) On the other hand she will not have the requisite knowledge if she thinks she knows the act 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 properly be said to know that it was”.

[16]In Haward v Fawcetts (a firm) 2006 PNLR 25 page 447 in his speech in the House of Lords, Lord Nicholls said at paragraphs 10 and 11 (page 451) “10. Questions about the degree of detail required have mostly arisen in the context of the need for a claimant to know ‘that damage was attributable in whole or in part to the act or omission which is alleged to constitute negligence’ … consistently with the underlying statutory purpose, Slade LJ observed in Wilkinson v Ancliff

1986 1WLR1352

, 1365, that it is not necessary for the claimant to have knowledge sufficient to enable his legal advisors to draft a fully and comprehensively particularised statement of claim. Where the complaint is that an employee was exposed to dangerous working conditions and his employer failed to take reasonable and proper steps to protect him it may well be sufficient to set time running if the claimant has “broad knowledge” of these matters. In the clinical negligence case of Hendy v Milton Keynes Health Authority 1992 3Med LR, 114, at 117 Blofeld J said a plaintiff may have sufficient knowledge if she appreciates “in general terms” that her problem was capable of being attributed to the operation even when particular facts of what specifically went wrong or how or where precise error was made is not known to her. In proceedings arising out of the manufacture and sale of the drug Opren, Purchas LJ said that what was required was knowledge of the “essence” of the act or omission to which the injury was attributable; Nash v Eli Lilly & Co

1993 1WLR 782

, at 799. In Spargo v North Essex District Health Authority 1997 PIQR page 235 Brook LJ referred to “a broad knowledge of the essence” of the relevant acts or omissions. To the same effect Hoffmann LJ said section 14(1)(b) requires that “one should look at the way the plaintiff puts his case, it is still what he is complaining about and ask whether he had, in broad terms, knowledge of the facts on which that complaint is based.” Broadly v Guy Clapham & Co 1993 4Med LR328, at 333. 11. A similar approach is applicable to the expression “attributable” in section 14A(8)(a). The statutory provisions do not require merely knowledge of the acts or omissions alleged to constitute negligence, they require knowledge that the damage was attributable in whole or in part to those acts or omissions. Consistently with the underlying statutory purpose, attributable had been interpreted by the courts to mean a real possibility, and not a fanciful one, a possible cause of the damages as opposed to a probable one; see Nash v Eli Lilly at 797 to 798. Thus, paraphrasing, time does not begin to run against the claimant until he knows there is a real possibility his damage was caused by the act or omission in question.”

[17]In the same case, Lord Mance observed at paragraph 119 (page 487) “119. On the other hand, as counsel for the claimants accepted in his note to the Judge …, a claimant cannot postpone the running of time almost indefinitely by reference to detailed factual points which often only become known in the course of investigation of a possible claim, or during the litigation itself. The Court of Appeal was right in Broadly v Guy Clapham & Co to disapprove a test adopted by Hirst J in Bentley v Bristol and West Health Authority insofar as it would have required a claimant to know all factual matters necessary to establish negligence or to draft a fully and comprehensively particularised claim.”

[18]In Nash v Eli Lilly

1993 1WLR782

, Lord Justice Purchas giving the judgment of the court set out at page 796 certain conclusions to guide them on this issue which included “… 3. The period of limitation begins to run when the plaintiff can first be said to have knowledge of the nature of his injury to justify the particular plaintiff taking the preliminary steps for the institution of proceedings against the person or persons whose act or omission has caused the significant injury concerned … 5. It is to be noted that a firm belief held by the plaintiff that his injury was attributable to the act or omission of the defendant, but in respect of which he thought it necessary to obtain reassurance or confirmation from experts, medical or legal or others would not be regarded as knowledge until the result of his inquiries was known to him … If negative expert advice is obtained that fact must be considered in combination with all other relevant facts in deciding when, if ever, the plaintiff had knowledge … If the plaintiff held the firm belief which was of sufficient certainty to justify the taking of the preliminary steps for proceedings by obtaining advice about making a claim for compensation, then such belief is knowledge and the limitation period would begin to run.” And at 799 “… It was not in our judgment the intention of Parliament to require for the purposes of section 11 … of the Act proof of knowledge of the terms in which it will be alleged that the act or omission of the defendants constituted negligence or breach of duty. What is required is knowledge of the essence of the act or omission to which the injury is attributable. …”

And at 799

[19]In AB v Ministry of Defence

2012 UKSC 9

reported 2013 1AC 78, in his judgment Lord Wilson JSC, at paragraph 12, considered the degree of confidence with which a belief should be held and the substance which it should carry before it amounts to knowledge for the purposes of the sub-section. He then conducted a survey of the authorities. He described “12. … A search for the moment at which the claimant knows enough to make it reasonable for him to begin to investigate whether he has a “case” against the defendant. … The investigation upon which the claimant should reasonably embark, is into whether in law he has a valid claim (in particular whether the act or omission of the defendant involves negligence or other breach of duty, being a matter of which the claimant is specifically not required to have knowledge under section 14(1)) and, if so, how that claim can be established in court. So it is an investigation likely to be conducted with the assistance of lawyers; but, in the light of their advice, it may well also embrace a search for evidence including from experts. The focus is upon the moment when it is reasonable for the claimant to embark on such an investigation. …13. I hasten, however, to add an obvious rider. From the fact that a claimant may well need to consult experts after he has acquired the requisite knowledge, it in no way follows that he will have acquired such knowledge by a date when he first consults an expert. Section 14(3) expressly recognises that the facts that he is required to know may be ascertainable by the claimant only with the help of experts and deems him to have acquired such knowledge at the point at which he might, with their help, reasonably have been expected to acquire it. In my view, the date upon which the claimant first consulted an expert is not, on its own, likely to assist the court in determining whether by then he had the requisite knowledge. Instead the court will have regard – broadly – to the confidence with which the claimant held the belief, and to the substance which it carried, prior to his consulting the expert … and also, if the conclusion is that at that prior stage the claimant lacked belief of the requisite character, the effect upon the claimant’s belief of his receipt of the expert’s report.

14. In short, the assistance given to the claimant by an expert in this respect can be of two kinds. One is assistance in his acquiring “knowledge” of the “facts” required by section 14. He may, for example, advise the claimant that he has a medical condition, of which he was previously unaware, which provides him with a substantive basis for believing that his injury is attributable to an act or omission of the defendant. The other is the provision of evidence which will, in court, help him to substantiate the claim which, in the light … of his knowledge of the limited matters specified by section 14(1), he proposes to bring.”

[20]In Harrison v Isle of Wight NHS Primary Care Trust

2013 EWHC 442

(QB) His Honour Judge McKenna was sitting as a Judge of the Queen’s Bench Division. He applied the principles identified in these appellate authorities. The claimant had undergone shoulder surgery but was left with limited movement and discomfort. She was of the view that something had gone wrong. There was suspicion she had had an excessive amount of bone removed but that was not confirmed by MRI imaging. She remained of the view that her continued discomfort had something to do with the bone removal. She obtained the support of a consultant orthopaedic surgeon that there was excessive and unnecessary removal of bone but, in his opinion, she did not have a claim because the removal of such an amount of bone might be supported by a body of orthopaedic surgeons and therefore would fail the “Bolam” Test. As a result, proceedings were not commenced and the limitation period, which had been extended for a short time by consent, was allowed to expire. A few weeks later, another doctor examined the claimant and discovered that her deltoid muscle was not properly attached. Proceedings, relying on that as the cause of her discomfort and as the act or omission comprising negligence, were issued 2 years later. The Judge concluded that the essence of the claim was the detachment of the deltoid muscle rather than the excessive removal of bone and that the claimant did not have appropriate knowledge before receipt of the opinion of the doctor who identified the muscle problem. Accordingly the claim was brought in time.

[21]I am also referred to Driscoll-Varley v Parkside Health Authority 1991 2 Med LR 346 in which Mr Justice Hidden concluded that a generalised formulation of complaints such as “attributable to negligence in treatment at the hospital” would not satisfy the statutory test that the injury “was attributable to the act or omission which is alleged to constitute negligence”. In that case, the difference was between a suspicion that a claimant’s broken limb had been mis-set and the later discovery that the injury was due to premature mobilisation.

THE CLAIM AGAINST WOLFERSTANS AND THE LIMITATION ACT

[22]Section 2 of the Limitation Act 1980 provides for a time limit for actions founded on tort. It provides “2. An action founded on tort shall not be brought after the expiration of six years from the date on which the cause of action accrued.”

[23]Section 5 of the Act provides for the time limit for actions founded on simple contract. It provides “5. An action founded on simple contract shall not be brought after the expiration of six years from the date on which the cause of action accrued.”

[24]In Bell v Peter Browne & Co 1990 2QB495 Lord Justice Nicholls considered the starting date for the running of the six-year limitation periods, respectively, for professional negligence claims based on contract and on tort. He said as follows at 501H-502A “One might have expected that parallel professional negligence claims based on contract and the tort of negligence would have a common starting date for the running of the six-year limitation periods applicable in most cases under the Limitation Act 1980. But this is not so, because a cause of action based on negligence does not accrue until damage is suffered. It is from that date, not the date on which the negligent act or omission occurred, that the six-year limitation period prescribed by section 2 of the Limitation Act 1980 runs”.

[25]In respect of contract, he said as follows at page 500c “… [Section 5 of the Limitation Act 1980] precludes the bringing of an action founded on simple contract after the expiration of six years from the date on which the cause of action accrued. Ascertaining that date involves identifying the relevant terms of the contract and also the date on which the breach relied on occurred.” Lord Justice Nicholls then considered two different situations. The first is where a solicitor (in that case) failed to take steps which were required of him by the contract thereupon being in breach of contract. He concluded that the six-year limitation period began to run from the date of the breach even though the breach remained remediable for many years. Thus, even though remediable, time running from the breach of the limitation period expired, so that a claim based on such a breach of contract was statute-barred, even though the solicitor’s breach of contact did not discharge his obligations. Thus he said, at 500H, as follows “It is, of course, true that the solicitor’s breach of contract in 1978 did not discharge his obligations. Had the plaintiff learned a year or two later what happened, he would still have been entitled to go back to his former solicitor and require him to carry out, belatedly, his contractual obligations so far as they could still be performed. … Despite this, it was in 1978 that the breach occurred. Failure thereafter to make good the omission did not constitute a further breach. The position after 1978 was simply that, in breach of contract, the solicitor had failed to do what he ought to have done in 1978 and, year after year, that breach remained unremedied. Nor would the position have been different if in, say, 1980 the plaintiff’s solicitor had been asked to remedy his breach of contract and he had failed to do so. His failure to make good his existing breach of contract on request would not have constituted a further breach of contract: it would not have set a new six-year limitation period running. Once again, the position would have been simply that the solicitor remained in breach. Nor, finally, is the position any different because … the breach remained remediable until 1986 when the house was sold. A remediable breach is just as much a breach of contract when it occurs as an irremediable breach, although the practical consequences are likely to be less serious if the breach comes to light in time to take remedial action. Were the law otherwise, in any of these instances, the effect would be to frustrate the purpose of the statute of limitation, for it would mean breaches of contract would never become statute-barred unless the innocent party chose to accept the defaulting party’s conduct as a repudiation, or perhaps performance ceased to be possible.” For completeness I add that the above observations are directed at the normal case where a contract provides for something to be done, and the defaulting party fails to fulfil his contractual obligation in that regard at the time when performance is due under the contract. In such a case there is a single breach of contract. By way of contrast are the exceptional cases where, on the true construction of the contract, the defaulting party’s obligation is a continuing contractual obligation. In such cases the obligation is not breached once and for all, but it is a contractual obligation which arises anew for performance day after day, so that each successive day there is a fresh breach. A familiar example of this is the usual form of repairing clause in a tenancy agreement. Non-repair for six years does not result in the repairing obligation becoming statute-barred while the tenancy still subsists. The obligation of the tenant or the landlord to keep the property in repair is broken afresh every day the property is out of repair … We were much pressed with the decision … in Midland Bank Trust Co Ltd v Hett, Stubbs and Kemp 1979 Ch 384. That case may be distinguishable on its facts. There, the defendant firm of solicitors never treated themselves as functi officio in relation to the auction. They continued to have dealings with their client in respect of the unregistered option, … The incident case stands in marked contrast. There is no suggestion that the defendants had any further contact with the plaintiff or his affairs after the conclusion of the divorce proceedings. That was more than six years before the writ was issued. The amended statement of claim, indeed, alleges that the solicitors owed a “continuing duty” to protect the plaintiff’s one-sixth beneficial interest until that duty could no longer be fulfilled or the plaintiff accepted the solicitor’s breach as repudiation. But this alleged continuing duty is not founded on any facts other than the initial retainer I have mentioned. This allegation takes the plaintiff’s case no further. “ “It is, of course, true that the solicitor’s breach of contract in 1978 did not discharge his obligations. Had the plaintiff learned a year or two later what happened, he would still have been entitled to go back to his former solicitor and require him to carry out, belatedly, his contractual obligations so far as they could still be performed. … Despite this, it was in 1978 that the breach occurred. Failure thereafter to make good the omission did not constitute a further breach. The position after 1978 was simply that, in breach of contract, the solicitor had failed to do what he ought to have done in 1978 and, year after year, that breach remained unremedied. Nor would the position have been different if in, say, 1980 the plaintiff’s solicitor had been asked to remedy his breach of contract and he had failed to do so. His failure to make good his existing breach of contract on request would not have constituted a further breach of contract: it would not have set a new six-year limitation period running. Once again, the position would have been simply that the solicitor remained in breach. Nor, finally, is the position any different because … the breach remained remediable until 1986 when the house was sold. A remediable breach is just as much a breach of contract when it occurs as an irremediable breach, although the practical consequences are likely to be less serious if the breach comes to light in time to take remedial action. Were the law otherwise, in any of these instances, the effect would be to frustrate the purpose of the statute of limitation, for it would mean breaches of contract would never become statute-barred unless the innocent party chose to accept the defaulting party’s conduct as a repudiation, or perhaps performance ceased to be possible.” For completeness I add that the above observations are directed at the normal case where a contract provides for something to be done, and the defaulting party fails to fulfil his contractual obligation in that regard at the time when performance is due under the contract. In such a case there is a single breach of contract. By way of contrast are the exceptional cases where, on the true construction of the contract, the defaulting party’s obligation is a continuing contractual obligation. In such cases the obligation is not breached once and for all, but it is a contractual obligation which arises anew for performance day after day, so that each successive day there is a fresh breach. A familiar example of this is the usual form of repairing clause in a tenancy agreement. Non-repair for six years does not result in the repairing obligation becoming statute-barred while the tenancy still subsists. The obligation of the tenant or the landlord to keep the property in repair is broken afresh every day the property is out of repair … We were much pressed with the decision … in Midland Bank Trust Co Ltd v Hett, Stubbs and Kemp 1979 Ch 384. That case may be distinguishable on its facts. There, the defendant firm of solicitors never treated themselves as functi officio in relation to the auction. They continued to have dealings with their client in respect of the unregistered option, … The incident case stands in marked contrast. There is no suggestion that the defendants had any further contact with the plaintiff or his affairs after the conclusion of the divorce proceedings. That was more than six years before the writ was issued. The amended statement of claim, indeed, alleges that the solicitors owed a “continuing duty” to protect the plaintiff’s one-sixth beneficial interest until that duty could no longer be fulfilled or the plaintiff accepted the solicitor’s breach as repudiation. But this alleged continuing duty is not founded on any facts other than the initial retainer I have mentioned. This allegation takes the plaintiff’s case no further. “

SECTION 33 OF THE LIMITATION ACT 1980

[26]Section 33 of the Limitation Act 1980 provides for discretionary exclusion of the time limit for actions in respect of personal injuries or death. It provides: “33-(-1) If it appears to the court that it would be equitable to allow an action to proceed having regard to the degree to which –(a) The provisions of section 11 … of this Act prejudice the plaintiff or any person whom he represents; and

(b) Any decision of the court under this sub-section would prejudice the defendant or any person whom he represents; The court may direct that those provisions shall not apply to the action, or shall not apply to any specified course of action to which the action relates. … (3) In acting under this section the court shall have regard to all the circumstances of the case and in particular to – (a) The length of, and the reasons for, the delay on the part of the plaintiff (b) The extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the plaintiff or the defendant is, or is likely to be, less cogent that if the action had been brought within the time allowed by section 11 …

(c) The conduct of the defendant after the course of action arose, including the extent (if any) to which he responded to requests reasonably made by the plaintiff for information or inspection for the purpose of ascertaining facts which were, or might be, relevant to the plaintiff’s course of action against the defendant; … (e) The extent to which the plaintiff acted promptly and reasonably once he knew whether or not the action, act or omission of the defendant, to which the injury was attributable, might be capable at that time of giving rise to an action for damages; (f) The steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received. …” (a) The provisions of section 11 … of this Act prejudice the plaintiff or any person whom he represents; and (b) Any decision of the court under this sub-section would prejudice the defendant or any person whom he represents;

[27]The discretion given to the court under section 33 is unfettered. It is to do what is fair and just in all the circumstances of the case. Nonetheless, the appellate courts have emphasised the burden placed on the claimant if she is to avail herself of the discretion given to the court. By way of example inKR v Bryn Alyn Community Holdings Ltd 2003 QB 1441 at paragraph 72(ii) Lord Justice Auld spoke, at paragraph 74, of there being a “heavy burden” on the claimant and it being “an exceptional indulgence” and, in Sayers v Chelwood

2013 1WLR 1695

, Lord Justice Jackson said at paragraph 53 “…there can be no doubt that if a claimant commences proceedings out of time and asks the court, in the exercise of its discretion under section 33 of the Limitation Act, to dis-apply section 11 … then the burden is on the claimant to persuade the court by evidence and argument that such a direction is appropriate….such a claimant is seeking the indulgence of the court … such indulgence is exceptional, in the sense that the claimant is seeking an exemption from the normal consequences of failing to commence proceedings within the limitation period”. He went on to say at paragraph 56 28. … “ All that one can say about the general approach to section 33 is that the burden is on the claimant. The claimant is seeking to be exempted from the normal consequences of failing to issue proceedings in time. It is for the claimant to establish by reference to the criteria set out in section 33 that it would be equitable to allow the action to proceed despite the expiry of the prescribed limitation period”. He discouraged an overly elaborate approach and encouraged a focus on the terms of the section. He discouraged, in particular, adding to the burden of the claimant by saying that it was “heavy” as opposed to simply saying that the burden was on her.

He went on to say at paragraph 56

[28]Most recently Lord Justice McCombe, in the case of RE v GE

2015 EWCA Civ 287

, said at paragraphs 58 -59 “58. … The question for the court under section 33 is whether it “would be equitable to allow the action to proceed”, notwithstanding the expiry of the primary limitation period. That question is to be answered by having regard to all the circumstances of the case, including in particular the factors identified in section 33(3). 59. Whether it is “equitable” to allow an action to proceed is no different a question, in my judgment, from asking whether it is fair in all the circumstances for the trial to take place … That question can only be answered by reference … to “all the circumstances“ including the particular factors picked out in the Act. No factor, as it seems to me, can be given a priori importance; all are potentially important. However the importance of each of those statutory factors and the importance of other factors (specific to the case), outside the ones spelled out in section 33(3), will vary in intensity from case to case. One of the factors will usually be … that statutory limitation rules are ‘… no doubt designed in part to encourage potential claimants to prosecute their claims with reasonable expedition … but they are also based on the belief that a time comes when, for better or worse, a defendant should be effectively relieved from the risk of having to resist stale claims’ [Bingham MR in Dobbie v Medway HA

[1994] 1WLR 1234

, 1238 D-E] Nor must it be forgotten that one relevant factor is surely that the very existence of the limitation period which Parliament has decided is usually appropriate.” ‘… no doubt designed in part to encourage potential claimants to prosecute their claims with reasonable expedition … but they are also based on the belief that a time comes when, for better or worse, a defendant should be effectively relieved from the risk of having to resist stale claims’ [Bingham MR in Dobbie v Medway HA

[1994] 1WLR 1234

, 1238 D-E]

THE FACTS AND EVIDENCE

[29]The claimant was born on 18th March 1979. In 1996, with the benefit of an epidural, she gave birth to her first child. In April 2003 she became pregnant again. During the evening of 3rd January 2004 she was admitted to Medway’s hospital, hypertensive with proteinurea. At 2pm on 4th January, she was transferred for induction of labour by artificial rupture of membranes. At about 8:50pm, she elected to have an epidural. At 9am on 5th January 2004 an anaesthetist, Dr Kanna, attended and at about 9:15am he began the epidural procedure. The first stage entailed siting the needle in the epidural space. The second stage entailed threading a catheter into the epidural space and beginning the administration of the anaesthetic block.

[30]In her statement in support of her application of public funding made to Wolferstans, dated 22 July 2004, she said:

“The anaesthetist gave me the epidural, had me sitting at the edge of the bed while he injected it. I thought this was strange as on the previous occasion I had had to lie down on the bed whilst I had the injection. Immediately the anaesthetist put the needle into my spine I felt everything, from my waist down, go numb. I told the anaesthetist what had happened but he said that couldn’t be the case as he hadn’t started to inject the anaesthetic at that point. I immediately knew that something was wrong and began to panic. I could not feel my legs and had a pain which felt like it was rushing up my spine and into the front of my head. The pain then moved into my neck and all around the back of my head. I was becoming increasingly agitated and all the anaesthetist said to me was “easy tiger”.”

[31]A note written by one of the midwives at 14:30 on 5th January is as follows “09:30. Kara feeling strange. Complained of pain in upper back and headache. Unable to stay still. Asked to lay down instead of sitting up. … Unable to… give epidural drugs at present… Kara in present condition although needle sited.”

[32]At 18:00 on 5th January, Dr Kanna described the claimant’s condition as follows:

“Severe headache (periorbital and frontal) and right shoulder pain. This patient caused a lot of trouble for us doing her epidural (got agitated) complained of severe headache the minute after siting her epid … complained of … and that she can’t move her leg. Very anxiety … Explained v possibility dural puncture. Pain killers prescribed …”

[33]In her 22nd July statement, the claimant recorded that her child was delivered by caesarean section. After she came round from the anaesthetic she was still numb below her waist and had the pain in her head. She was told over a number of days that she would be OK in time. On 9th January, when she was due to be released, she told the hospital staff she was still numb in her legs. They didn’t seem concerned. Her first day home she collapsed at the top of the stairs and couldn’t get up. Eventually, she was admitted back into hospital for a CAT scan and was told that they found fluid on her brain from the epidural. She was transferred to King’s College Hospital and underwent major surgery to release fluid from her brain. On 31st January they inserted a shunt to drain the fluid from her brain which is permanent.

[34]She was discharged from King’s College Hospital on 6th February 2004, the symptoms of hydrocephalus having improved dramatically.

[35]By 17th February 2004, the claimant’s GP wrote to a consultant neurologist describing a major problem concerning loss of sensation from the waist down. She is described as struggling to walk with the aid of two crutches. The fear was she would require a wheelchair unless her neurology improved.

[36]By a letter of the same date, the GP requested that the hospital hold a critical incident meeting because the claimant’s family were asking questions about her care upon which the GP was not in a position to give an informed explanation.

[37]On 15th March 2004, the claimant made contact with Accident Support Ltd with a view to bringing a claim against the Trust. On the form, the claimant gives the following description “Had epidural in her back causing fluid on the brain and paralysis from waist down. Client had to have major brain surgery … Client uses crutches to walk. Waiting for wheelchair …The anaesthetist injecting the epidural on clients back injected needle too far into client’s spine causing paralysis from (illegible) into her legs”.

[38]In her statement of 22nd July, under the heading “Breach of Duty of Care”, the claimant said “I believe that the anaesthetist who performed the epidural did so negligently in that he, I believe, pushed the needle too far into my spine causing damage”.

[39]Under the heading “Causation of Injury”, she attributed the severe loss of feeling in her legs, total numbness in her big toes and loss of all the reflexes and sensations in her legs, to the anaesthetist’s negligence as well as the hydrocephalus.

[40]On 17th August 2004, Wolferstans obtained a certificate of public funding to investigate the claim against the Trust.

[41]On 8th October 2004 Wolferstans wrote to Medway seeking disclosure of hospital records with a view to investigation of a possible claim. Wolferstans stated that, if the matter was to be pursued, a detailed letter of claim would be provided. In November 2004, Wolferstans received and reviewed the medical notes from Medway. They demonstrated that the claimant consistently said the problems she was experiencing were triggered by the epidural but that the hospital dismissed the suggestion that the symptoms were related to the epidural. In fact, no letter of claim was sent by Wolferstans to Medway. No claim form was served and, on 21st January 2008, Wolferstans confirmed they had closed their file and invited Medway to do the same.

[42]Following Wolferstans’ letter of 8th October 2004, Medway obtained preliminary comments from Dr Mukherjee (lead clinician for obstetric anaesthesia) who reviewed the claimant’s notes and Dr Venkat, the consultant anaesthetist who saw her for the first time on 28th January 2004. No further investigation was made at that stage and no other witnesses were then contacted.

[43]In July 2005, Wolferstans prepared letters of instruction for Dr Bogod, a consultant anaesthetist, and Professor Schapira, a consultant neurologist. Detailed letters of instruction then followed.

[44]Dr Schapira provided his report on 13th February 2006. He was prepared to support a case on causation in respect of the hydrocephalus arising from the epidural procedure. He wanted to review the MRI scan as that might demonstrate damage to the spinal cord by the needle.

[45]He identified two potential causes of the claimant’s problems. The numbness and weakness in the legs would imply there had been some damage to the spinal cord by the epidural needle which would be indicative of negligence. Alternatively, there could have been a dural puncture with bleeding into the cerebral spinal fluid space, that being a more common cause of symptoms of headaches and hydrocephalus. Wolferstans were of the view that they needed to consider whether or not the siting of the epidural needle was negligent.

[46]Mr Bogod’s report of 1st April 2006 concluded the most likely cause of the subsequent symptoms was a dural puncture followed by a significant haemorrhage during the epidural. While that would explain the headaches he did not consider it would have caused the hydrocephalus or the neurological problems in the legs and, therefore, felt that the needle must also have penetrated into the spinal space and hit a blood vessel which would have led to blood travelling up to the head, causing the hydrocephalus, and possibly cord compression, explaining the neurological symptoms. The other possibility to explain the leg symptoms was that the epidural needle had actually penetrated the spinal cord.

[47]Dr Bogod also considered the possibility of the wrong drug being injected, but dismissed this option as the claimant had in fact been anaesthetised.

[48]His conclusion was that there was no evidence to suggest that the anaesthetist had acted negligently. Dural punctures can occur without negligence during epidural procedures. If, however, the needle had penetrated the spinal cord then that would have been negligent. The best way to establish whether this was the case was to obtain an MRI scan to see whether there was any evidence of direct spinal cord damage by the needle.

[49]Arrangements were then set in train for the claimant to undergo an MRI scan. That was problematic. There is a detailed account in Gill Burrows’ witness statement for Wolferstans concerning attempts to arrange an MRI scan. I do not refer to them in detail but her account is not disputed. In the end, a scan was arranged for 26th January 2007 at the Nuffield Hospital, but that was unsuccessful because the claimant was in too much pain, was unable to lie still and was reported to be claustrophobic. Attempts were made to arrange a second scan which required extensions of the primary limitation period to be agreed by the Trust, initially to 7th April 2007, then to 7th May 2007. A further attempt was made to conduct an MRI scan on 23rd April 2007 but the claimant was unable to keep still for long enough to allow the scan to take place.

[50]The Nuffield wrote to Wolferstans on 27th April reporting the failure of the second attempt at an MRI scan stating that the only option was a scan with general anaesthesia.

[51]At this point conduct of the claimant’s case was transferred within Wolferstans from Mrs Burrows to Mrs Buckthought, who describes herself as a very experienced clinical negligence lawyer. She immediately sought a further extension of time to 7th July to which the Trust acceded.

[52]On 2nd May Mrs Buckthought wrote to the claimant that the Nuffield had confirmed that the only option was to proceed by way of general anaesthetic. Mrs Buckthought stated that she was “really quite reluctant to go down this route because of the obvious implications that this would have for [the claimant]”. She asked that they discuss matters over the phone. On 30th May the claimant and Mrs Buckthought had a meeting at which it appears the claimant agreed that it was extremely unlikely that she would be able to undergo an MRI scan. The claimant had similar concerns to Mrs Buckthought about undergoing one under general anaesthesia, as did her GP. Mrs Buckthought said they needed realistically to reassess the strengths and weaknesses of the claim, bearing in mind that they could not obtain the MRI scan which the experts had previously indicated was crucial.

[53]On 4th June 2007 Mrs Buckthought notified the claimant that she had written to the experts to assess the strengths of the claim if an MRI scan were not available. On 18th June 2007 Mrs Buckthought received a letter from Dr Bogod who stated he did not know of any other way of assessing the spinal cord anatomy without an MRI scan.

[54]On 26th June, Mrs Buckthought asked for a further extension to the 7th August to which Medway agreed. On 16th July Professor Schapira wrote that both he and Dr Bogod considered it very likely that the dura was punctured at the time of the epidural and that this could have allowed blood to enter the CSF space which could have resulted in an inflammatory process such as to induce hydrocephalus. Dr Bogod did not consider the puncture of the dura to have been negligent. The alternative explanation, that there was direct damage to the spinal cord, required MRI investigation. He added that any alleged failure relating to the care the claimant received after the injury would, for the most part, not have caused further injury.

[55]On 19th July 2007 Mrs Buckthought wrote to the claimant that she had received Professor Schapira’s response. She explained that both Dr Bogod and Professor Schapira were of the view that the most likely cause of the injury was the penetration of the dura mater which had occurred non-negligently. The file note of the same date recorded that it was “difficult to see how we can now take this further”.

[56]On 24th July 2007 there was a long telephone call between Mrs Buckthought and the claimant. Mrs Buckthought explained that whilst they could establish causation of her injury they could not establish breach of duty of care as the most likely cause was an inadvertent puncture of the dura mater, which Dr Bogod said was not negligent. On the other hand, in respect of aftercare, they could identify breach of duty but were not able to identify any causation of injury as per Professor Schapira. Mrs Buckthought noted that she assured the claimant that the fact that she could not undergo an MRI scan was not determinative of the decision to advise her to discontinue. Whilst there was a possibility that she had damage to the spinal cord, the much more likely cause, the experts felt, was dural puncture and, on the balance of probabilities, this was what caused the injuries. Her advice was to discontinue the claim.

[57]On 26th July Mrs Buckthought wrote to the claimant reiterating her advice that the claimant should discontinue the claim and provide written instructions to that effect. In that letter Mrs Buckthought stated that, by discontinuing, the claimant would not be able to recommence her claim at any later stage because the limitation period had already expired, though it had been extended by Medway to 7th August. Once the case was discontinued and she passed that date, Medway would argue that she was out of time for bringing a further claim.

[58]On 30th July 2007, the claimant asked Mrs Buckthought for a further set of her hospital records. She wanted to have another look at them before making a decision. She referred to her own neurologist being critical of the reports of Professor Schapira and Dr Bogod. Mrs Buckthought obtained a further extension from Medway to 7th September. On 3rd August, the claimant spoke to Mrs Buckthought to the effect that she agreed with Mrs Buckthought concerning the spinal injury part of the claim but wished to continue the claim with regard to aftercare. Mrs Buckthought explained she would commence proceedings in the following week to protect her position but that it was unlikely that the Legal Service Commission would support such a claim. On 8th August, Mrs Buckthought reviewed matters and noted that in her view there was clearly no claim in respect of the epidural itself and that, as far as the potential failure to diagnose the hydrocephalus was concerned, that would only produce a case that was very limited in value and that, overall, there was insufficient merit to proceed. On 9th August, Mrs Buckthought wrote to the claimant concerning her view there would be difficulties pursuing any claim in respect of the post-operative care. Whilst they might be able to identify a breach of duty of care, Professor Schapira’s very clear opinion was that such breach of duty did not have any effect in terms of causation as the treatment and prognosis would have been the same. Mrs Buckthought concluded that she did not believe they would be able to continue with the claim and she had notified the Legal Services Commission accordingly. She anticipated the Legal Services Commission would issue a “show cause letter” as to why funding should continue.

[59]On the same day Mrs Buckthought sent the claimant a form of authority requiring the claimant to tender instructions authorising Wolferstans to discontinue with her clinical negligence claim and thereafter to discharge her public funding certificate.

[60]On 10th August 2007, relying on Mrs Buckthought’s advice, the claimant completed the form of authority and, on 15th August, emailed it to Wolferstans. Mrs Buckthought acknowledged receipt on that date by email to the effect that the claimant had now provided her with instructions to discontinue the case in any event.

[61]On 7th September the Legal Services Commission appears to have resolved to discharge the certificate of public funding, although this, apparently, was not communicated to Wolferstans for some days. As a result, on 11th September, Mrs Buckthought wrote to the Legal Services Commission inviting them to respond to her previous request that they should discontinue funding.

[62]The claimant’s neurological symptoms did not resolve and on 12th November 2009 and 10th August 2010 she underwent MRI scans, respectively, of the head and spine, performed under sedation. The MRI scan of the spine demonstrated extensive spinal abnormalities which, in the opinion of the claimant’s doctors, could only plausibly be caused by the condition known as arachnoiditis, inflammation of the arachnoid, one of the membranes surrounding and protecting the nerves of the central nervous system including the brain and spinal cord. It was a likely trigger of the hydrocephalus which developed in January 2004 and the cause of the claimant’s ongoing neurological symptoms affecting her lower limbs.

[63]Within a week, the 17th August 2010, the claimant revisited Wolferstans enquiring about a possible new claim. But on 2nd September 2010 Wolferstans, having completed their preliminary screening procedure, stated that they were unable to assist because the claim was time-barred and she would have considerable difficulty persuading the court to exercise its section 33 discretion.

[64]The claimant approached her current solicitors who applied for legal aid. They applied for clinical notes and records from her GP and Medway at the beginning of September 2010. The bulk of the notes and records were received by the end of October. On 30th December 2010, Medway emailed the new solicitors asking why it was thought there was a claim against the Trust on the basis that she did not fall foul of the Limitation Act, as opposed to a claim against her previous lawyers.

[65]The new solicitors sought advice from counsel on limitation and, in particular, section 33. In June 2011, advice was received which was negative in respect of the prospects of a successful section 33 application.

[66]Dr Bogod was instructed to reconsider the case. His second report was dated 19th April 2012. This involved rehearsing much of his original report but updating and altering his conclusions.

[67]In his initial report, Dr Bogod described two areas of injury; serious cerebral problems evinced by severe headache immediately after the epidural procedure, and a less clear-cut, but still convincing, history of numbness and weakness in her legs. An explanation for what had happened needed to account for these disparate elements as well as fitting with the events surrounding the epidural procedure. In his initial report, the only feasible mechanism put forward was dural puncture followed by a significant haemorrhage from one of the blood vessels in or around the spinal cord.

[68]Dural puncture was extremely likely because: first, the epidural needle finished at a depth of seven centimetres from the skin which suggested the needle went further than usual; and second, both the first epidural dose and the second caesarean section dose produced a much higher block than would be expected with a normal epidural. However, in that report he also recorded that the dural puncture would not, on its own, account for either the hydrocephalus or the neurological problems in the legs. To explain these phenomena it would be necessary to postulate that the epidural needle, having penetrated into the spinal space, then hit a blood vessel and that blood travelled up to the head in the cerebral spinal fluid (CSF) and behaved like a sub-arachnoid haemorrhage blocking the free flow of CSF and causing hydrocephalus. If the needle had actually penetrated the cord then it could have caused direct neurological damage to the legs. Alternatively, the same bleeding which caused the hydrocephalus could also have compressed the spinal cord resulting in a more gradual loss of function.

[69]However, against that hypothesis was the fact that a haemorrhagic cause for the hydrocephalus was considered unlikely by the surgeon because of the relatively low red cell count in the CSF at the time of surgery. Furthermore, direct spinal cord damage by the needle tip would almost certainly have caused the claimant to feel a very severe pain like an electric shock, whereas none of her accounts of the events indicated that. Finally, gradual cord compression would not readily account for the immediate leg numbness of which the claimant complained as the needle was inserted.

[70]Dr Bogod had also considered another possible explanation, namely, that the anaesthetist made a serious error and injected the wrong drugs down the epidural catheter. If these drugs could have found their way into the sub-arachnoid space, as would be the case in the presence of a dural puncture, they could have set up an inflammatory reaction which would result in both hydrocephalus and aggressive neurological dysfunction in the legs. However, it would be difficult to reconcile this hypothesis with the fact that the injected drugs produced their expected numbing effect enabling caesarean section to be carried out.

[71]He had reported that he could not rule out some form of idiosyncratic reaction on the claimant’s part to the drugs that were injected. He referred to having encountered one case with several similarities.

[72]He had opined in the first report that:(i) there was an implied direct connection between the claimant’s injuries and the epidural procedure;

(ii) it was very likely that the claimant suffered an inadvertent dural puncture at the time of the epidural procedure;

(iii) there was no evidence of substandard practice;

(iv) if it transpired that there was direct damage to the spinal cord from the epidural needle that would strongly support the view that the performance of the epidural procedure was unacceptably poor;

(v) the after care was poor but it would be difficult to demonstrate any direct causative link between that and the damage the claimant has suffered; and

(vi) to answer the several areas of uncertainty he strongly recommended an MRI scan of the claimant’s thoracolumbar spine

[73]In his second opinion, he noted the fact that, subsequently, a scan had shown a picture which was compatible with arachnoiditis with loculation of the sub-arachnoid space leading to cord compression. He recorded that, in 2006, his view was that the only feasible mechanism was dural puncture followed by a significant haemorrhage from one of the blood vessels in or around the spinal cord. He recorded that in the intervening years he had been involved in, or become aware of, similar cases which had led him to change his view. He is now of the opinion that the fluid used to locate the epidural space (most likely), or the drugs used to initiate the epidural block (less likely) became contaminated with chlorhexidine, an antiseptic widely used to decontaminate the skin before sterile procedures.

[74]He repeated his reasoning to support his conclusion that dural puncture was extremely likely to have occurred. He then recorded that in his original report he pointed out that dural puncture would not explain the development of hydrocephalus or neurological problems in the legs but had discussed the possible aetiologies stressing that none was very convincing.

[75]He explained why none of: bleeding into the sub-arachnoid space; injection of the wrong drugs; and an idiosyncratic reaction to the correct drugs; were convincing. He referred to the case of Angelique Sutcliffe, where he had been instructed as an expert to support her case. In that case, decided after his first report, a court had found that the spinal dose of bupivacaine had become contaminated with chlorhexidine used to prepare the skin, probably as a result of the syringe coming to lie in a pool of the antiseptic on the sterile procedure trolley and that it was this chemical which caused the catastrophic reaction. At the time of his first report, he had felt that this was unlikely and there was no prima facie evidence that contamination had occurred. However, his opinion changed after hearing of an Australian patient, Ms Wang, where it was known that the anaesthetist had accidentally used a chlorhexidine solution instead of saline to identify the epidural space. She suffered hydrocephalus and progressive neuropathology of the legs. Thus it was now clear that chlorhexidine, injected down an epidural needle into the sub-arachnoid space can result in a progressive arachnoiditis characterised by a rapid onset of obstructive hydrocephalus and progressive neurological deterioration of the lower limbs affecting bladder and bowel functions, such as with the claimant.

[76]He concluded that, in the light of cases of Sutcliffe and Wang, since there is no other explanation of the claimant’s problems which adequately explains the outcome “I am compelled to conclude that, on the balance of probabilities, chlorhexidine was injected down the epidural needle or catheter, either in error for the correct solution, or as a contaminant”.

[77]He maintained his view that a dural puncture, on its own, was not indicative of sub-standard practice. But if it were found that the anaesthetist administered chlorhexidine, either down the epidural needle or the catheter, then that would be indicative of unacceptably poor practice. That would similarly be the case if there were inadvertent contamination of the correct fluid with a small amount of chlorhexidine as there was a burden of duty upon anaesthetists to ensure that epidural and spinal injections remain completely uncontaminated.

[78]Thereafter, reports were obtained from consultant neurologists all of whom reached the view that the claimant’s injuries were, on the balance of probabilities, caused by the injection of chlorhexidine into the epidural space during the process of analgesia on 5th January 2004.

[79]Proceedings were commenced against Wolferstans on 2nd September 2013, served on the 8th December 2013.

[80]Wolferstans served their defence on the 8th May 2014. They contended that the limitation period governing the claim against the Medway was still current so that the claimant had not lost the chance to pursue Medway. Her claim against Wolferstans disclosed no cause of action. Wolferstans also contended that the contractual claim against them was out of time. In the alternative, they contended that if, contrary to their primary case, the claimant was prevented by limitation from pursuing Medway she would have had good prospects of succeeding on a section 33 application, following the MRI scan in August 2010 and Dr Bogod’s second report in April 2012, and that failure to make such an application would constitute a failure to mitigate her loss.

[81]On 28th August 2014, proceedings were issued by the claimant against Medway. They invited Medway to restrict its pleaded defence to the issue of limitation.

[82]On 24th November 2014, Medway served a defence alleging that the claimant had the requisite knowledge for the purposes of sections 11 and 14 of the Limitation Act by 22nd July 2004 at the latest, so that the claim was statute-barred.

[83]An application has now been made by the claimant in the proceedings against Medway seeking discretionary release under section 33. THE PLEADED CLAIMS THE CLAIM AGAINST MEDWAY

THE PLEADED CLAIMS

[84]The nub of the factual basis for the claim is at paragraphs 60, 62, 63, 64 and 65 of the Particulars of Claim. They read as follows “60… The claimant underwent an MRI scan … on or about 10th August 2010 [of … the spine] … 62. The MRI scan of the claimant’s spine demonstrated extensive spinal abnormalities, the only possible cause of which being arachnoiditis. 63. The arachnoiditis was the likely cause of the hydrocephalus which developed in January 2004 and of the claimant’s ongoing neurological symptoms. 64. The arachnoiditis was caused by a chemical contaminant. On the balance of probabilities, the chemical contaminant was chlorhexidine (an antiseptic) used to clean the claimant’s skin in preparation for the epidural which was, or must have been, introduced into the cerebral spinal fluid space on 5th January 2004 when the epidural needle was placed (to test whether or not the needle was in the sub-arachnoid space) or at the time when the catheter was threaded. 65. In so contending, the claimant will in particular rely upon the following:-65.1 The claimant suffered sudden severe symptoms (including headache, pain in the back and agitation) after the anaesthetist placed the epidural needle but prior to the insertion of any anaesthetic agent.

65.2 The symptoms were suggestive of dural puncture and either bleeding into the sub-arachnoid space or contamination of the cerebral spinal fluid … 65.5 Blood contamination of the cerebral spinal fluid could not have been the cause of the irritation of the arachnoid membrane since the CT angiogram conducted on or about 31st January 2004 excluded intra-cranial-vascular pathology (which could have caused sub-arachnoid haemorrhage) and intra-dural-arterial haemorrhage could not have occurred since damage to the conus of the cord would have occurred which would have resulted in a different pattern of symptoms. 65.6 Accordingly, the cause of the arachnoiditis was chemical contamination with chlorhexidine at the time of the siting of the epidural on 5th January 2004. Breach of Duty 66. Contamination with chlorhexidine occurred and could only have occurred by reason of negligent clinical practice on the part of the anaesthetic team. In the premises, the claimant will rely upon the doctrine of Res Ipsa Loquitur as establishing breach of duty on the defendant Trust’s part. 67. Further, or in the alternative, the claimant’s injuries and consequential losses were caused by the negligence of the defendant Trust’s servants or agents in breach of their duty to the claimant.”

Breach of Duty

[85]Paragraph 67, contains particulars of negligence. Particulars number 11 to 19 relate to complaints about the aftercare of the claimant including the response to the symptoms experienced by her immediately after the epidural procedure. As a consequence it is said that the negligence in her aftercare caused the claimant to suffer the consequences of delay in the diagnosis of hydrocephalus from 5th January 2004 to 30th January 2004.

[86]On causation, the case is pleaded in the following terms “68. Had the defendant Trust’s servants or agents exercised the requisite skill and care, the claimant would not have been contaminated with chlorhexidine and/or chlorhexidine would not have entered the sub-arachnoid space and/or contaminated the cerebral spinal fluid. But for the negligence of the defendant Trust, the claimant’s hydrocephalus, or her neurological symptoms and her continuing neurological disabilities would have been prevented. 69. Had the treating doctors exercised reasonable care during the period from 5th January 2004 to 30th January 2004, the claimant’s neurological condition would have been diagnosed on or shortly after 5th January 2004 and the delay of 25 days in the diagnosis and treatment of the hydrocephalus would have been avoided.”

[87]The Particulars of Claim set out particulars of injury, loss and damage. There is no reference to any injury, loss or damage suffered during the period between 5th January and 30th January and said to be occasioned by the negligent aftercare of the claimant.

THE CLAIM AGAINST WOLFERSTANS

[88]The pleading opens with a brief statement of the claimant’s clinical negligence claim in the following terms “2. At or about 9:15 on 5th January 2004, an epidural was administered in the course of which procedure contamination of the cerebral spinal fluid with chlorhexidine occurred. 3. As a result of the said contamination, the claimant developed acute arachnoiditis and a consequent gross hydrocephalus affecting all four ventricles of the brain necessitating the surgical insertion of a ventriculo peritoneal shunt. 4. By reason of the aforesaid, the claimant has been left with severe permanent neurological injury and thereby suffered loss and damage.”

[89]The pleading then sets out the detailed chronology of the involvement of the claimant with Wolferstans. In particular, at paragraphs 47 and 48, reference is made to advice tendered to the claimant by Mrs Buckthought on 24th July 2007 and by letter dated 26th July 2007 that, given the very slim prospects of success, the claimant should discontinue the claim and that she should provide instructions to that effect in writing.

[90]The chronology continues with reference to activity on the file and at paragraph 57 it states “On or about 15th August 2007, the claimant confirmed to the defendant that she agreed to discontinue her claim. 58. In the premises:58.1 The defendant’s retainer was terminated.

58.2 No claim form was issued against and/or served on the Medway NHS Trust prior to the expiry of the limitation period (which had in any event been extended by agreement to 7th September 2007).

58.3 The claimant’s right to bring a claim against the Medway NHS Trust was irretrievably lost.”

[91]At paragraph 66, it is contended that Wolferstans, its servants or agents, were in breach of contract and/or in breach of tortious duty. It sets out, at paragraph 66.1 to 12, a series of particulars of negligence which include at 66.11 “Wrongly advised the claimant and the Legal Services Commission that the case had limited prospects of success such that it should not be pursued when there were in fact no grounds upon which to make such a determination since matters had not been investigated sufficiently …”

[92]The pleading sets out, at 66.11.1 and 66.11.2, contentions in support of that proposition.

[93]At 66.12, the pleading continues “Failed to issue a claim form (and/or further extend the limitation period by agreement) in order to protect the claimant’s position, prior to the expiry of the limitation period (as extended by agreement) and thereby allowed the claimant’s claim to become time-barred.”

[94]The claim is put that the claimant lost the chance to pursue her claim against Medway. SUBMISSIONS AND CONCLUSIONS ON THE QUESTIONS POSED Question 1. For the purposes of sections 11(4) and 14(1) of the Limitation Act 1980 did the claimant acquire the requisite knowledge for the purpose of her claim against Medway by no later than 22nd July 2004? Submissions

SUBMISSIONS AND CONCLUSIONS ON THE QUESTIONS POSED

[95]The claimant accepts, and Medway contends, that she had the requisite knowledge at the latest by 22nd July 2004, the date she made her initial statement to Wolferstans for the purpose of obtaining legal aid to investigate a claim against Medway for negligence in respect of her symptoms – hydrocephalus and neurological difficulties – arising out of the application of the epidural on 5th January 2004.

[96]The claimant and Medway submit that she had, by that date, a broad knowledge of the essence of the act or omission said to be negligent and to which her significant injuries are said to be attributable. She had enough knowledge supporting her belief which was sufficient to make it reasonable for her to begin to investigate whether or not she had a case against Medway. She so firmly believed that her condition was capable of being attributed to an act or omission which she could identify in broad terms that she went to a solicitor to seek advice about making a claim for compensation.

[97]The claimant and Medway do not accept that, during the period up to her MRI scan in August 2010 or receipt of Dr Bogod’s second report on 19th April 2012, she was “barking up the wrong tree”. Her knowledge throughout was sufficient in general terms. Her knowledge was of the essence of the act or omission to which the injury was attributable. That was sufficient to start time running. Whilst she may not, until April 2012 have known all factual matters necessary to establish negligence or to draft a fully and comprehensively particularised claim, that is not a requirement for time to begin to run.

[98]The claimant and Medway say that the essence of her complaint is that on 5th January 2004 an anaesthetist employed by the Trust administered an epidural to the claimant, that the epidural went wrong, and as a result she developed hydrocephalus and the other neurological problems from which she continues to suffer. Her state of mind, as evidenced by her actions and statements up until 22nd July 2004, was that she was convinced that all the physical problems she was experiencing were a consequence of the administering of the epidural on 5th January 2004. She knew she had significant injuries, hydrocephalus and was suffering considerable back pain and loss of mobility.

[99]She had broad knowledge of the essence of the relevant act or omission immediately the anaesthetist inserted the needle into her back and she experienced unexpected pain. Her knowledge then of what went wrong extended to her belief that the anaesthetist pushed the needle too far into her spine causing damage.

[100]The claimant and Medway point out that her claim continues to be based on the action of the anaesthetist in pushing the needle to the point where there was a dural puncture. The development of Dr Bogod’s thinking about the precise mechanism causing her injuries, as evidenced by his report of April 2012, still involves the dural puncture as part of the mechanism by which her injuries were caused. In April 2012 his opinion had developed so that he now attributes the injuries to the development of arachnoiditis through the contamination of the needle or catheter by chlorhexidine which was, or must have been, introduced into the cerebral spinal fluid space when the needle was placed to test whether it was in the sub-arachnoid space, or when the catheter was threaded.

[101]The claimant and Medway contend that, far from barking up the wrong tree, the claimant has, from the outset, had knowledge of: the identity of the defendant; its relevant servants or agents; that her injuries were significant; and that they were attributable in whole, or in part, to the act or omission which is alleged to constitute negligence, nuisance or breach of duty, namely, the administering of the epidural and, in particular, inserting the needle too far so that there was a dural puncture. She has had knowledge of the essence of her case in these respects from the outset and, certainly, from 22nd July 2004.

[102]Wolferstans contend that knowledge did not arise until Dr Bogod’s second report of April 2012. They contend that the key lies in the way in which the claim against it was introduced by the claimant “2. … an epidural was administered in the course of which procedure contamination of the cerebral spinal fluid with chlorhexidine occurred. 3. As a result of the said contamination the claimant developed acute arachnoiditis and consequent gross hydrocephalus … 4. By reason of the aforesaid the claimant has been left with severe, permanent neurological injury and thereby suffered loss and damage.”

[103]This was further articulated in that pleading in the following terms “62. The MRI scan of the claimant’s spine demonstrated extensive spinal abnormalities, the only possible cause of which being arachnoiditis.63. The arachnoiditis was the likely cause of the hydrocephalus in 2004.

64. The most likely cause of the arachnoiditis was a chemical contaminant, namely, chlorhexidine … which was, or must have been, introduced into the cerebral spinal fluid space on 5th January 2004 when the epidural needle was placed … or at the time when the catheter was threaded.

65. Contamination with chlorhexidine occurred, and could only have occurred, by reason of negligent clinical practice on the part of the anaesthetic team on or about 5th January 2004.”

[104]It is said that, prior to Dr Bogod’s second report, the focus of the claimant, the solicitors and her experts was wrongly directed to considering whether the insertion of the needle had been negligent and had directly caused her injuries.

[105]Dr Bogod’s first report concluded that a dural puncture was extremely likely though that would not, in itself, constitute negligent practice. He indicated that a dural puncture would not on its own account for either the hydrocephalus or the neurological problems. To explain those it would be necessary to postulate: that the epidural needle, having penetrated into the spinal space, then hit a blood vessel, blood from which would travel up to the head in the cerebral spinal fluid so as to cause hydrocephalus and could have compressed the spinal cord resulting in a more gradual loss of function. Alternatively the needle had penetrated the cord and caused direct neurological damage to the legs.

[106]There were contra indications to each of these proposed mechanisms – the relatively low red cell count in the cerebral spinal fluid at the time of the surgery, and the claimant not reporting a very severe pain like an electric shock. Thus Dr Bogod opined that, if it transpired that there was direct damage to the spinal cord from the epidural needle, then the performance of the epidural procedure would have been unacceptably poor and that an MRI scan and assessment by an expert neurologist should be undertaken to test that possibility.

[107]Wolferstans contend that Dr Bogod did consider some form of contamination setting up an inflammatory reaction which would result in both hydrocephalus and progressive neurological dysfunction in the legs, but only in the form of a serious error by the anaesthetist by injecting the wrong drugs down the epidural catheter. Dr Bogod discounted this because the injected drugs had produced their expected numbing effect.

[108]The mechanism causing the injuries on which Dr Bogod advised in April 2012 reflected the contamination route. The injuries were caused by arachnoiditis resulting from contamination by chlorhexidine being introduced into the CSF, albeit the precise mechanism was inadvertent contamination of the needle or catheter rather than deliberate but erroneous injection of the wrong chemical. It was only after his consideration of this case in the context of the case of Sutcliffe, to which he had made passing reference in his first report, and the recent case of Wang that this explanation presented itself to Dr Bogod as the only one which could explain what had happened in all the circumstances.

[109]Wolferstans contend that it was only once the claimant had knowledge of her true diagnosis and the connection between arachnoiditis and chlorhexidine contamination that she had the relevant knowledge for the purposes of section 11. It is contended that this is a case in which she and her advisers were “barking up the wrong tree” for some years and that the starting point for limitation is the receipt of Dr Bogod’s report in 2012.

[110]Reliance is placed by Wolferstans by way of example upon the decision in Harrison v Isle of Wight NHS Primary Care Trust.

Conclusions

[111]In my judgment, this is not a case in which the claimant and her legal and medical advisors were “barking up the wrong tree” from the outset until the true position was revealed to Dr Bogod in April 2012. On the contrary, from, at the latest, the 22nd July 2004, the claimant had a firm belief that her injuries had been caused by something that had gone wrong in the administration of the epidural. She attributed it to a mechanism which involved the insertion of the needle to the extent that it triggered the injuries. That much was supported by her medical advisers at that stage. The inadvertent dural puncture has been present as the likely mechanism resulting in what went catastrophically wrong from that early stage. From that point the precise mechanism by which the dural puncture led to the injuries was a matter of conjecture and uncertainty as evidenced by the contents of Dr Bogod’s first report and it was not until diagnosis of arachnoiditis was confirmed by the MRI scan in 2010 and was further processed by Dr Bogod in his second report in 2012 that the precise mechanism whereby the injuries had been sustained could authoritatively be described by him in the form which is reflected in the pleaded cases against Medway and Wolferstans.

[112]Applying the various formulations which the appellate authorities have provided for the assistance of the courts in applying sections 11 and 14, in my judgment, this is a case in which the claimant did from, at the latest 22nd July 2004, have the requisite level of knowledge, in terms of the firmness of her beliefs and the substance of her knowledge, as to the act or omission alleged to constitute negligence to which her injuries were attributable. It was, the administration of epidural and, in particular the insertion of the needle. True it is that she was not, until April 2012, in possession of knowledge which would enable her precisely to describe and plead the mechanism whereby her injuries were sustained and the precise form of negligence which, it is said, must have occurred so as to cause her injury. Such a level of detail and precise knowledge, however, in my judgment, goes beyond the level of knowledge which is required by section 11 and section 14, as explained in the authorities, to cause time to start to run. She had a broad knowledge of the essence of the causally relevant act or omission to which the injury is attributable sufficient for her to embark on an investigation of whether or not she had a claim. Thus I am satisfied the level of knowledge evidenced in her statement of 22nd July 2004 was sufficient, pursuant to section 11 and section 14 to cause time to start to run.

[113]I also conclude that the development of the formulation, in April 2012, by Dr Bogod of the precise mechanism through which the injuries were caused does not evidence a situation in which the claimant and her advisors were barking up the wrong tree until then.

[114]In my judgment the facts of this case are distinguishable from the facts in Harrison. In that case there was a lack of certainty on the part of the claimant from the outset. The cause of the injury from which the claimant suffered was substantially different from that which had previously been considered at the earlier stage of the investigation.

[115]Accordingly, my answer to Question 1 is yes. Question 2. Did the claimant acquire such knowledge some time between 16th August 2011 and 19th April 2012?

[116]The answer to this question is no. Question 3. Did the claimant acquire such knowledge on a date prior to 2nd September 2010 being three years prior to 2nd September 2010 being 3 years prior to the issue of the claim form against Wolferstans?

[117]The answer to that question is yes. Question 4. At the date of issue of the claim form against the defendant Wolferstans on 2nd September 2013, had the claimant lost the chance to pursue her claim against the Medway NHS Trust?

[118]The answer to that question is yes. However, I have yet to consider the application under section 33 which would, if successful, mean that her claim against Medway would not be statute-barred. Question 5. At the date of issue of the claim on 2nd September 2013 was the claim against Wolferstans in contract statute barred pursuant to section 5 of the Limitation Act 1980? Discussion and

Conclusions

[119]It is common ground that, so far as the claim against Wolferstans is a tortious one, that claim is not statute-barred. It is accepted that the damage sustained by the claimant, namely the loss of the chance of successfully suing Medway, did not occur until 7th September 2007 when the final extension period granted by Medway expired without renewal, at which point, in the light of my decision on Question 1, the claim against Medway became statute-barred (subject to any decision I may make under section 33). As the cause of action in tort accrues only when the damage occurs then the claim instituted by the claimant against Wolferstans on 2nd September 2013 fell within the six-year limitation period, starting on the 7th September 2007, provided for by section 2 of the Limitation Act 1980.

[120]The limitation period is not necessarily the same for a claim brought in contract based on the same underlying facts. The cause of action in contract accrues when the breach of contract occurs and, even though that breach may be remediable, once time has started, it continues, unless it can be said that the breach of contact is of a continuing nature. (Bell v Peter Browne)

[121]The breach of contract contended for by the claimant against Wolferstans is, effectively the giving of advice that she had no good claim against Medway and that she should discontinue her claim and, as a consequence, failing to institute proceedings in time. This was first tendered orally on 24th July. It was then tendered in writing on 26th July 2007 and was finally reiterated on 9th August 2007. It was acted on by the claimant 15th August 2007 when she emailed a copy of her signed form of authority instructing Wolferstans to discontinue her clinical negligence claim and to discharge her public funding certificate.

[122]Thereafter the retainer of Wolferstans as the claimant’s solicitors may have continued until 7th September 2007, when the Legal Services Commission resolved to discharge the claimant’s certificate of public funding and thereafter communicated that fact to Wolferstans.

[123]In my judgment time began to run on the 24th July 2007 when advice, alleged to be in breach of contract was given. Time began to run again on 26th July 2007 when, for a second time, the same advice was given in written form. It began to run again on 9th August 2007 when, for the third time, the same advice was tendered. On this occasion it was acted on by the claimant by her signing and, on 15th August, returning the form giving instructions in accordance with that advice. At that point Wolferstans could not, in accordance with the claimant’s instructions, have instituted proceedings against Medway. Thereafter, although the breach of contract (if it was such) was remediable, it was not a continuing breach which arose afresh day by day so as to give rise to the commencement of a fresh limitation period on each day that passed.

[124]It follows, therefore, that the institution by the claimant of her claim alleging breach of contract against Wolferstans on 2nd September 2013 fell outside the limitation period of six years provided for by section 5 and is time-barred.

[125]The answer to question 5 is yes. The claimant’s application under section 33 of the Limitation Act 1980. Discussion

[126]This application was made on 11th December 2014, filed with the court on 7th January 2015, in the proceedings brought against Medway commenced on 28th August 2014.

[127]The contention of the claimant is that it would be equitable to allow this action to proceed having regard to the degree to which the provisions of section 11 prejudice the claimant and a decision to allow the action to proceed would prejudice the defendant.

[128]The claimant contends that it only became apparent in April 2012 that she had a claim against Medway. Only on that date did the precise mechanism by which her injuries were caused by way of contamination of the CSF by chlorhexidine, as a result of the dural puncture, become apparent to her expert, Dr Bogod, who then opined that such contamination must have arisen by way of the negligence of the anaesthetic team administering the epidural on 5th January 2004. Until then, although she had “knowledge” sufficient to trigger the running of time for the purposes of section 11, as early as 22nd July 2004, the claimant had, throughout, acted in accordance with her legal advice, supported by the evidence of her medical experts, that her claim, as then understood, had little or no prospects of success. She did not understand that she had what is now said to be a good claim against Medway until the development of Dr Bogod’s thinking, in the light of the outcome of the MRI scan and his consideration of similar cases, fructified in his opinion in the report of 19th April 2012.

[129]The claimant contends that she has a good claim against Medway which is now time-barred pursuant to section 11. She is said to be prejudiced by section 11 because she is unable to bring this good claim and she has no appropriate alternative remedy against Wolferstans in negligence. Medway contends that the claim against Wolferstans is an appropriate alternative so as to preclude the operation of section 33

[130]The claim against Wolferstans is for the loss of the chance of suing Medway. Of necessity that would result in her recovering less than 100% of what she would recover were her claim against Medway allowed to proceed and were to be successful.

[131]Furthermore, her ability to succeed against Wolferstans, even to the extent of recovering for the loss of her chance, depends upon her establishing that Wolferstans was negligent. Whilst the claimant contends that she has a good claim in negligence against Wolferstans, that claim too is by no means bound to succeed. I have not, of course, considered in any depth the contentions, respectively, of the claimant and Wolferstans concerning their alleged negligence, but even a cursory examination of the chronology demonstrates to me that the claimant would be by no means bound to succeed in establishing a claim of negligence against Wolferstans.

[132]Accordingly, I am satisfied that the operation of section 11 would prejudice the claimant because the alternative remedy against Wolferstans is by no means bound to succeed and would, in any event, result in an award of damages less than that she would receive were she to proceed against Medway and win.

[133]I have, however, also to have regard to the prejudice to Medway if the claimant were permitted to proceed against Medway by disapplying section 11 of the Limitation Act 1980 to this claim.

[134]I have to have regard to all the circumstances, but in particular, to the matters set out at section 33(3)(a to f).

[135]I have first to consider the length of the delay and the reasons for it on the part of the claimant. The delay is from 7th September 2007 until 28th August 2014 being, respectively, the expiration of the extended limitation period and the commencement of these proceedings against Medway. There is no doubt that the period is significant. That is by no means, on its own, determinate of the issue.

[136]I find that the claimant has been an assiduous litigant. She has acted proactively to investigate and to pursue a claim which she felt she had against Medway from shortly after the 5th January 2004. The only criticism made of her is that, having had two unsuccessful attempts to obtain an MRI scan which was considered critical to her claim, she did not seek to have an MRI scan under general anaesthetic when it was offered by the Nuffield Hospital. In that regard, however, having regard to her then medical condition, the misgivings expressed by Wolferstans and the misgivings expressed by her GP, she cannot be criticised for not undertaking an MRI scan at that time. The extended primary time limit was allowed to expire because she accepted legal advice, underpinned by medical advice, that her claim had little or no prospect of success.

[137]From 7th September 2007 until August 2010, when she was informed that she had suffered arachnoiditis arising out of the outcome of an MRI scan, she was inactive, having acted in accordance with the legal advice she had been given. Immediately she was given her diagnosis of arachnoiditis, she tried to obtain the assistance of Wolferstans, who declined on the grounds that the claim was already statute-barred. She sought the assistance of other solicitors, who had experience in similar cases. They were prompt in beginning to investigate the claim. One course which was adopted was to obtain the advice of counsel, in May 2011, on the operation of section 33 of the Limitation Act. His advice was that an application under section 33 was, at that stage, very unlikely to succeed. That was, of course, prior to receipt of Dr Bogod’s second report in April 2012 which, for the first time, spelt out a precise mechanism on the basis of which, it is now said by the claimant, she has a good claim against Medway.

[138]Thereafter, her focus was on proceedings brought against Wolferstans who, in turn, raised the issue that, in fact, she was not time-barred to proceed against Medway by reason of the contention that the requisite knowledge for section 11 purposes did not arise until April 2012. Thereupon, without any significant delay, she commenced proceedings against Medway on 28th August 2014, contending that this claim was in time. As a backstop, in response to an argument raised by Wolferstans, this application under section 33 is now made.

[139]In my judgment, though the period of delay is a significant one which may, in other respects, affect the exercise of my discretion, it cannot be said that the claimant has been at fault in causing any significant part of the delay.

[140]Similarly, I am satisfied that the claimant has not failed to act promptly or reasonably for any of the purposes identified under sub-paragraph e and f of sub-section 3. Sub-paragraph d does not apply in this case.

[141]The focus of the argument in this application has been on section 33(3) sub-paragraphs b and c. Sub-paragraph b requires me to have regard to the extent to which, having regard to the delay, the evidence adduced, or likely to be adduced, by the claimant, or the defendant, is likely to be less cogent than if the action had been brought within the time allowed by section 11.

[142]In my judgment, the evidence of the claimant is not likely to be less cogent by virtue of the delay. In so far as she can give evidence of what happened on 5th January she gave her account to her then solicitors in July 2004 which is as full as it is likely to be.

[143]Medway contends that the passage of time makes the evidence it can adduce substantially less cogent than if the proceedings had been commenced before 7th September 2007. There is contemporaneous evidence from the anaesthetist and the midwife, or midwives, in the form of contemporaneous medical notes and records recording the administering of the epidural. Medway contends that it is now handicapped, by reason of the passage of time, in its ability to obtain direct evidence from those who were present in the administering of the epidural. The anaesthetist, Dr Kanna, has been contacted but has no recollection of the case. Other members of staff who were present are no longer employed by Medway. I am invited to infer that, even if they were contactable, they would be likely to have no recollection either. Medway contends that it is impossible for it properly to defend the case and that this handicap is such that it means that the claimant cannot satisfy me that it is equitable that the case should be permitted to proceed. It is pointed out that in the similar case of Sutcliffe the trial judge had the benefit of hearing from the witnesses to the procedure.

[144]The claimant contends that the handicap under which Medway labours is of little or no significance. First, there is contemporaneous evidence in the form of the charts filled out by the anaesthetist and the members of his team and the notes made by midwives who were in attendance and the anaesthetist, which are virtually contemporaneous. Second, there should be evidence which Medway can adduce of its procedures, systems and protocols designed to prevent inadvertent contamination, such as is alleged by the claimant occurred on this occasion. Third, and in any event, the claimant’s case is that the contamination occurred inadvertently and was highly unlikely to have been known to have occurred by any of the Medway staff present at the time, other than as evidenced by the matters that are already in their records. Thus it is contended that it is highly unlikely that Medway would be able to adduce evidence from those who were there which is any more cogent than that which is already available through contemporaneous notes and records. Fourth, the claimant’s case is that the expert evidence can establish, on the balance of probabilities, that the precise mechanism of the injuries sustained must have been occasioned by contamination of the needles or the catheter by chlorhexidine and that this could not occur otherwise than by way of negligence on the part of the anaesthetic team. The case is explicitly pleaded on the basis of “Res Ipsa Loquitur”. The claimant contends that the case will succeed or fail on the basis of the establishment of the immediate effect of the application of the epidural on the claimant, which is already in evidence from Medway’s own records, and on the effect of the medical expert evidence on what, the claimant contends, must have been the cause of the injuries and the fact that it must have arisen through the negligence of Medway. The claimant contends that evidence from those present at the procedure, which goes beyond what is already contained in the notes, would be highly unlikely to be in any way relevant or probative. The complaint is that the contamination was inadvertent, that is to say, those present were unaware of it.

[145]Medway contends that, to the extent that any such contemporaneous recollection of those who were present might be of assistance to them in resisting the claimant’s claim, then they are inevitably prejudiced due to the passage of time by being unable now to obtain such evidence.

[146]I also have to have regard to the conduct of the defendant after the cause of action arose, including the extent to which it responded to requests reasonably made by the claimant for information or inspection for the purpose of ascertaining facts which were, or might be, relevant to the Claimant’s cause of action against the defendant. No criticism is, or could be, made of Medway in its responding to requests for hospital records or for extensions of the primary limitation period.

[147]The claimant invites me to note that Medway was put on notice that the claimant’s family were expressing disquiet about her treatment to her GP as early as 17th February 2004 when the GP wrote suggesting that it would be prudent for the anaesthetics department to hold a critical incident meeting and investigate the circumstances of her delivery further. In any event, although there was never any formal letter before claim, Medway were aware from 8th October 2004 that the claimant’s solicitors were seeking disclosure of her hospital records with a view to investigating a possible claim against them arising from the administration of the epidural. They remained on notice, and acceded to a number of requests to extend the primary limitation period, until expiration of that final extension on 7th September 2007. Thereafter it was not until 12th January 2008, when Wolferstans confirmed to Medway they had closed their file, that Medway was invited to do the same.

[148]Following receipt of the letter of 8th October 2004, Medway obtained preliminary evidence in the form of comments from Dr Mukherjee, lead clinician for obstetric anaesthesia, and Dr Venkat, the consultant anaesthetist who saw the claimant following her readmission on 28th January 2004. Though it was open for them to do so, Medway did not then seek any further comments, beyond their contemporaneous notes, from those who had been present during the administration of the epidural. Thus, to the extent that Medway may now be handicapped by the passage of time and the lack of recollection and/or unavailability, of those who were present, to that extent it is the result of its decision made in or about October 2004.

[149]Medway says that this is a stale case which it would not be fair or equitable to permit the claimant to pursue Conclusions

[150]I have found that the claimant is prejudiced by the provisions of section 11 which, unless I were to exercise my discretion under section 33, prevent her bringing her claim against Medway. I also find that, were I to make a section 33 order, it would prejudice the defendant because it would have to respond to a claim which, but for the order, it would not have to face because it is time-barred. The burden is on the claimant to show that it is equitable for me to make the order where she has failed to commence her proceedings against Medway in time. I have to consider the degree of prejudice to either side and I must have regard to all the circumstances in particular those listed in subsection (3) which are relevant.

[151]I have concluded that the claimant is not responsible for the delay in commencing the proceedings in time or thereafter until 28th August 2014. In this case what particularly exercises me is the question whether Medway’s ability to defend the claim is so handicapped by the passage of time since the expiration of the time limit that the claimant is unable to establish that it would be equitable to permit her now to pursue her claim.

[152]In my judgment, whilst there must inevitably be some prejudice because of its likely inability to call as witnesses those who were in attendance, I also have regard to the fact that their contemporaneous accounts are already on record. I find that, given the nature of the claim, they would have been highly unlikely to be able to add anything to their notes which goes to the issue of negligence. The claimant’s case is that contamination occurred unknown to those present and involved. Medway can adduce evidence, if it so wishes, of systems, procedures and protocols, to answer the contention that contamination must have occurred by way of negligence. Medway is not handicapped in adducing expert evidence, if it sees fit, to call into question the conclusions of Dr Bogod in his second report. Medway had the opportunity, if it saw fit, to obtain evidence from those who were present and involved on 5th January 2004 but chose not to do so, though it did obtain evidence from others who were in a supervisory position or were involved at a later stage.

[153]The burden of proof is on the claimant. She is seeking an indulgence having not commenced the proceedings in time. I have to reach a conclusion which is fair both to the claimant and the defendant, not just to the claimant.

[154]In my judgment, having had regard to all the circumstances and, in particular, those listed in section 33 (3), it is equitable to allow this action to proceed by directing that section 11 of the Limitation Act 1980 shall not apply to this claim brought against Medway.

[155]The claimant is and has been assiduous in investigating and pursuing her claim. The precise mechanism which the claimant contends gave rise to her injuries, arising out of the administering of the epidural in circumstances pointing to the defendant’s negligence, did not become apparent until April 2012. There is no appropriate alternative remedy for the claimant by proceeding against Wolferstans. The way the claimant now puts her case, based on the doctrine of “Res Ipsa Loquitur,” means that main burden of the debate before the court will be undertaken by medical experts. There is already sufficient contemporaneous written material from witnesses on both sides which will enable the court to make findings on what occurred on 5th January 2004. The nature of the claim is that negligence was inadvertent and that none of the participants in the procedure would have realised that contamination had occurred. Thus it is highly unlikely that any of those directly present would be in a position to add materially to what they noted at the time. In any event, Medway had the opportunity to obtain comments from those directly present at the time and chose not to do so, though it did take the opportunity to obtain from others. Medway can still adduce evidence of systems, procedures and protocols and from its own expert witnesses to seek to answer the claimant’s case. Thus, the prejudice to Medway by now having to defend this claim is substantially outweighed by the prejudice to the claimant if she were now unable to pursue her claim. In my judgment she has discharged the burden upon her to demonstrate that it is equitable to allow her action against Medway to proceed by my exercising the discretion under section 33 to direct that section 11 of the Limitation Act 1980 shall not apply to the action brought by the claimant against Medway.

[156]Pursuant to section 33 of the Limitation Act 1980, I direct that section 11 of the Limitation Act 1980 shall not apply to the action brought by the claimant against Medway.

Cited in 1 later judgment

Karen Shaw v Brigid Maguire 2023