News
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Limitation Period in Medical Negligence Action
In a November 4 2005 judgment in Arthur v DHSS, delivered by Deemster Kerruish, the Isle of Man High Court considered what was to be regarded as the date of the plaintiff's 'knowledge' sufficient to commence the limitation period running in circumstances where the primary limitation period had expired pursuant to the Limitation Act 1984 (Act of Tynwald).
The plaintiff issued proceedings against the defendant in January 2005 following an allegedly negligent operation which was performed in March 2000 to treat an injury which the plaintiff had sustained in a fall. The primary limitation period of three years as provided by Section 11 of the act had clearly expired at the date of issuing proceedings and the plaintiff sought a court order that the limitation period should commence from her 'date of knowledge' as defined in Sections 15(1) and (3) of the act - namely the date on which the plaintiff knew, among other things, that the injury was significant and was attributable in whole or in part to the negligence of the defendant, and knew the defendant's identity. Pursuant to the act, 'knowledge' includes knowledge a plaintiff might reasonably have been expected to acquire from facts observable or ascertainable by him or her, or with the help of a medical or other appropriate expert whose assistance it would be reasonable to seek. In the alternative, the plaintiff sought an order pursuant to Section 31, which provides that the court has discretion to disapply the limitation period where it would be equitable to do so.
The plaintiff argued that her 'date of knowledge' was the date on which she had received an expert medical report, in July 2004, confirming her suspicions that the treatment she had received was negligent. The advocate for the plaintiff referred to the authority of Nash v Eli Lilly & Co,(1) in which Lord Justice Purchas, in delivering the judgment, said:
"if it appears that a claimant, while believing that his injury is attributable to the act or omission of the defendant, realizes that his belief requires expert confirmation before he acquires such a degree of certainty of belief as amounts to knowledge, then he will not have knowledge until that confirmation is obtained."
The deemster, rejecting this argument, preferred the approach of Lord Donaldson in Halford v Brookes.(2) In adopting this approach, the deemster considered that it was not necessary for the plaintiff to have knowledge of fault or negligence, as a matter of law. He determined that the court should:
"proceed on the basis that knowledge is a condition of mind which imports a degree of certainty and that degree of certainty which is appropriate for this purpose is that which for the particular plaintiff may reasonably be regarded as sufficient to justify embarking upon the preliminaries for the making of a claim for compensation such as the taking of legal or other advice."(3)
The plaintiff had first taken legal advice regarding her injuries in April 2001, just over a year after her operation, and the deemster therefore held that this was the date on which she had the requisite knowledge for the limitation period to begin running. This was notwithstanding that, from the advocate's file, over which the plaintiff had waived privilege, it was clear that the plaintiff was primarily concerned with pursuing a claim against those responsible for the fall which caused the initial injury. The limitation period expired in April 2004 and therefore the claim was out of time. However, the plaintiff successfully argued that the court should exercise its discretion to disapply the limitation period to her action pursuant to Section 31 of the Limitation Act 1984 (Act of Tynwald).
For further information please contact Nicola Kane at Simcocks by telephone (+44 1624 690 300) or by fax (+44 1624 690 333) or by email (nkane@simcocks.com).
Endnotes
(1) August 28 1992; [1993] All ER 383 at 395.
(2) [1991] 3 All ER 559 at 573.
(3) At paragraph 16.
