The Limits on Limitation

In a recently obtained Judgment, our Healthcare team successfully defended a Claim brought in 2014 against an orthopaedic surgeon in connection with allegedly negligent management in 2007 and 2008. The case came to trial at the end of March 2017, but Judgement was not handed down until August 2017.

The Issues

The Claimant suffered a bilateral quadriceps rupture which the Court accepted was a 'vanishingly rare or astonishingly rare occurrence'. The diagnosis was only made by chance when an MRI was performed four years later in 2011 given the suspicion of an unrelated DVT and / or cyst. Against that background, the fundamental issues to be determined were whether a reasonably competent consultant orthopaedic surgeon should have spotted and identified the ruptures or tears in both quadriceps muscles / tendons during the period of his care if they were there, and acted thereafter to repair them in a timely fashion.

The Court accepted that the presentation in 2007 / 2008 was atypical of the above complication; in other words, the case concerned an unusual and a typical presentation of a vanishingly rare complication.

Findings

On the evidence, the Court dismissed the claim. Indeed, where the Claimant had failed to contact the surgeon at all, the Claimant was found to have made a choice not to do so and the Court was unwilling to visit the consequences of that decision on the Defendant.

Wider significance

 Whilst the outcome was of course gratifying, the basis upon which the Court found in favour of the Defendant is of wider relevance.

The Judge warned against;

'…all too easy post-hoc speculation and rationalisation [and] of being wise after the event'.

This was a classic case of an expert instructed by the Claimant viewing matters retrospectively, starting from the diagnosis and working backwards; rather than prospectively; considering matters as they would have been at the relevant time.  The Judgment is highly critical of such conduct by experts and of a failure to take full and proper account of relevant contemporaneous evidence when reaching a balanced and independent view.  It is a Judgment which experts may wish to heed.

Moreover, the Judgment also provides a stark reminder to Claimants (who often argue this point) that a Defendant, in respect of liability, is obliged to prove precisely nothing. The onus remains firmly on the Claimant to prove his case and here, the Claimant had failed to do so.

In a nod to 'real life', the judge concluded in any event that;

'There simply is not somebody to blame for every happening in life.'

Limitation

The court also accepted the Defendant's submissions on Limitation, finding that the Claim was statute barred.

The Judge went on to find that if she was wrong about breach of duty, that could only be because the Claimant had indeed presented with persistent pain and marked functional difficulty after January 2008.  In those circumstances, the Claimant would then have been on notice of a problem, and, as the Judgment makes clear, affixed with knowledge for the purpose of Section 14 of the Limitation Act. The Judge went further and confirmed that it would have been that which should have prompted the Claimant to act on that knowledge and it would have been more than reasonable for the Claimant,

'…to have returned to his GP or asked for a further referral back to the surgeon.'

The onus would then have been on the Claimant to conduct reasonable enquiries or to take reasonable steps into the source of his continuing discomfort or functional disability. The Judge further added that she would not have exercised the Court's discretion to disapply the usual three year limitation period in accordance with Section 33 of the Limitation Act.

The Court's position on Limitation in this case marks a growing trend to once more take a much stricter position on Limitation than has been seen in previous years.

The stricter approach to litigation and procedure since the seminal cases of Mitchell and Denton appears to have followed through to the more fundamental question of Limitation barring claims. That is beginning to evidence itself with refusals by Courts to accede to applications made and previously almost routinely won by Claimants under Section 33 Limitation Act 1980.

Such points were previously hesitatingly taken by Defendants; perhaps we 'Knee-d' a rethink?

Author: Richard Manstoff