At first instance, the court found that the defendants had acted non-negligently and that limitation had expired in 2007 since the claimant knew all material facts and it was not relevant whether she knew that the defendants conduct was negligent or not.
The claimant appealed arguing that the defendants had failed to identify a viable cause of action in that the hospital had failed to advise the claimant over the risks of genetic defect following ultrasound scan and that the claim was not statute barred because the claimant had not learnt that the defendants’ advice was incorrect until 2009.
The court of appeal dismissed the appeal, noting that the law in relation to a doctor's duty to provide information and advice has developed substantially in the last fourteen years, although the advice which was given was correct on the basis of the material available and the law as it stood in July 2001. There was no negligence by the defendants.
As to limitation, the court concluded that although the reasoning in the first instance judgment was flawed, the outcome was correct. Limitation did not start to run until the claimant knew, or ought to have known, that she had lost a viable cause of action. While the claimant did not have actual knowledge for the purposes of section 14A of the Limitation Act in 2001, she did have constructive knowledge of proposition 1 by reason of section 14A (10). The claimant could have been expected to make further enquiries and seek legal advice elsewhere well before the expiry of the limitation period, six years after receiving the original advice. She had “every opportunity” to obtain the knowledge required to pursue matters further but chose not to do so.
A useful judgment on limitation and a reminder of what duties litigators are under and the steps they need to take in order to non-negligently investigate claims.
Joseph Carr & Ellen Lucas, Anthony Gold