What constitutes knowledge and the development of the Bolam principle

When does ‘knowledge’ constitute choice and choice demonstrate knowledge for the purposes of the Limitation Act 1980 (LA 1980)? Julie Norris, partner, and Rowena Rix, solicitor, at Kingsley Napley comment on the decision in Chinnock which they say leaves open further debate in future cases on the matter of actual and objective, constructive knowledge.

Original news

Chinnock v Veale Wasbrough and another [2015] EWCA Civ 441, [2015] All ER (D) 65 (May)The claimant had retained the defendant firm of solicitors and barrister in respect of a clinical negligence claim. They advised her that she did not have a viable claim. Consequently, she did not pursue the action. She was subsequently advised that her claim had been viable and so she issued proceedings alleging professional negligence. The claim was dismissed on grounds of liability and as being statute barred. The Court of Appeal, Civil Division, dismissed the appeal, but differed from the judge in finding that she had had constructive, not actual, knowledge that she had had a viable claim against the lawyers.

What’s the background to this case?

Chinnock (the claimant) took legal advice in relation to bringing a claim against an NHS trust in respect of advice which she and her husband received. The advice informed their decision not to terminate their pregnancy in which there was a risk of having a child with a serious chromosomal abnormality, trisomy. Following a conference with the relevant medical experts, the couple’s legal team advised against bringing such a claim on the basis that it could not succeed on liability. The claimant subsequently brought action against her solicitors and barrister for the advice upon which they relied in deciding not to pursue a claim against the NHS trust, having allowed the proceedings to lapse. The Queen’s Bench Division (QBD) found that the barrister and solicitors were not negligent and that the case was statute barred having been brought too late. The claimant then took her case to the appellate court where her appeal was dismissed.

What issues did this case raise? Why is it significant?

This case raises a number of important points of law which are noteworthy for disciplinary and clinical negligence lawyers alike.

First, and most relevant for clinical negligence lawyers, it has significance as to what constitutes ‘knowledge’ in accordance with the LA 1980.

Secondly, it provides useful analysis of ‘the Bolam principle’ (Bolam v Friern Hospital Management Committee [1957] 2 All ER 118) and how it has developed and been interpreted over the years following Bolitho v City and Hackney Health Authority [1998] AC 232, [1997] 4 All ER 771, Sidaway v Board of Governors of the Bethlem Royal Hospital [1985] 1 AC 871, [1985] 1 All ER 643 and more recently, and importantly, in the case of Montgomery v Lanarkshire Health Board [2015] UKSC 11, [2015] All ER (D) 113 (Mar) in relation to the communication of risk.

Limitation

In order for Jackson LJ to consider limitation, it was necessary to do so as though:

the claimant had a viable cause of action against the NHS, and
her lawyers were negligent

Neither of which were established at first instance or on appeal.

LA 1980, s 14A provides for a special time limit for negligence actions where facts relevant to cause of action are not known at date of accrual. For the purpose of LA 1980, ‘knowledge’ (required for bringing an action (LA 1980, s 14A(5))) is defined as knowledge of the material facts about the damage in respect of which damages are claimed (LA 1980, s 14A(6)(a)), and knowledge of other facts (LA 1980, s 14A(8)) relevant to the current action (LA 1980, s 14A(b)). Knowledge includes that which a person might reasonably have been expected to acquire from facts ascertainable or observable, with or without the help of appropriate expert advice (LA 1980, s 14A(10)). With this knowledge, the claimant will then have three years in which to bring their claim.

In the Court of Appeal, while agreeing unanimously that the claim was out of time, Jackson LJ and Longmore LJ applied different reasoning to that of Roth J.

In line with the finding (but not the reasoning) of Dingemans J at the Queen’s Bench Division, Roth J found that the claimant had actual knowledge. In making a finding of actual knowledge, Roth J highlighted the tension between LA 1980, ss 14A(8)(a) and 14A(9) which stipulate, respectively, that the claimant should have knowledge that the damage was attributable to the act/omission which constitutes negligence while, at the same time, providing that knowledge of the involvement of negligence is irrelevant.

Roth J also drew upon the findings in the case of Haward v Fawcetts [2006] UKHL 9, [2006] 3 All ER 497 emphasising that in order for the ‘special period’ of limitation to start, the claimant must have known:

the risk of trisomy revealed by 20 October 1997 scan was 1:13
the comments made by the radiologist in his report on the scan of 18 February 1998, and
that neither of these were communicated to her at the time

Roth J found that, in 2001, the claimant had become aware of (a) and was self-evidently aware of (c). The claimant did not know that there was a duty for the doctors to convey this information to her and indeed, Roth J’s reading of LA 1980, s 14A(9) was such that ‘any acts or omissions’ could not be confined to those of the defendants (the solicitor and barrister).

Conversely, it was Jackson LJ and Longmore LJ’s interpretation that that the negligence referred to in LA 1980, s 14A(9) was that of the defendant and not a third party (the NHS) and so concluded that, while the claimant had constructive knowledge, she did not have actual knowledge in 2001. According to Jackson LJ, by reason of LA 1980, s 14A(10), the claimant had constructive knowledge of incorrect legal advice and of a viable cause of action against the NHS trust in 2001. In his reasoning, Jackson LJ referred to the claimant having given evidence to the effect that she was ‘dumbfounded’ by the legal advice which she received. Jackson LJ likened these instant facts to those in Forbes v Wandsworth Health Authority [1997] QB 402, [1996] 4 All ER 881 concluding that, by virtue of the claimant’s reaction to the legal advice, she had an opportunity to seek a second opinion but chose not to do so (whether consciously or not).

The Bolam principle

The Bolam principle established that a medical practitioner was to be judged by the standards of his profession. If a doctor acts in accordance with the practice of a responsible body of practitioners, then he is not negligent—even if others would have taken a different and more efficacious approach. The principle was subsequently developed further to include one exception in accordance with the case of Bolitho which prevents a doctor from avoiding liability under circumstances in which the practice of the profession, or part of it, is found to be unreasonable.

What has been debated over the years is the extent to which a doctor’s duty extends to the provision of information and advice. In the case of Sidaway, Lord Bridge, with a view to future cases such as this one, expressed his view that ‘disclosure of a particular risk was so obviously necessary to an informed choice on the part of the patient that no reasonably prudent medical man (sic) would fail to make it’. Lord Bridge referred to a ‘significant risk’ as being in the region of 10%. Since then, the case of Montgomery has undermined the reasoning of Lord Bridge and lowered the threshold from ‘significant risk’ to ‘any material risks’. Therefore, had the solicitor and barrister for the claimant been advising her in the present day, this might have been the basis on which they probed the experts and consequently, they might have advised the client that she did have a case against the NHS trust. However, this was not the position in 2001 and so, in following the relevant guidance at that time, as set out in the third edition of Clinical Negligence by Powers and Harris (Butterworths, 2000), the defendants were not negligent.

Jackson LJ found that counsel had ‘put the crucial documents to the claimants’ experts and ascertained how far they would really support the proposed claim’ and that she was ‘competent’ in her questioning of the expert witness. Counsel’s advice was found to be correct on the basis of the law as it stood in 2001 and on the basis of the material available to her—the same was said about the solicitors.

How helpful is this judgment in clarifying the law in this area?

Jackson LJ acknowledged that the provisions of LA 1980, s 14A are ‘challenging’ and, arguably, they are no less so following this decision. Therefore, this case does leave open for future cases, further debate on this matter of actual and/or objective, constructive knowledge.

As for the application of the Bolam test, this judgment serves to clarify the law in this area, in the context of its history and particularly in relation to the duty of medical practitioners in communicating risk to their patients.

What are the implications of the decisions for lawyers and their clients? What should they do next?

In respect of limitation, this judgment may give solicitors cause to consider and review cases which might be subject to the ‘special time limit’. However, in doing so, they should be careful to take heed of Roth J’s citing of the case of Haward which reiterates the more fundamental consideration of the regime of limitation, the purpose of which is to forge a compromise between the irreconcilable interests (both legitimate) of the claimant seeking a legal remedy having suffered a wrong and protection for the defendant against defending a ‘stale’ claim.

In addition to the analysis of the law surrounding limitation and the duties of medical practitioners, the latter of which might be helpful for solicitors to emphasise to experts already instructed in such matters, this case provides some more practical guidance and perhaps even reassurance to solicitors practising in these arenas in that, while there is a duty to probe your experts sufficiently, you are not expected to foretell the future of how the case law might change after you have given your advice. It is one thing to await and/or be alive to an impending landmark judgment, but it is another thing altogether to be expected to predict how an established legal principle will develop over the next decade or so.

Further, in circumstances in which one has to give unwelcome advice to clients, this case confirms that it is acceptable and appropriate to do so ‘bluntly’ and robustly, Jackson LJ stating that, ‘it is no kindness to the client to soften the advice or to encourage them to press on anyway’.

How does all this fit in with other developments in this area? Do you have any predictions for future developments?

Since 2001, the law in relation to a doctor’s duty has changed significantly, the most recent development being in the case of Montgomery which introduces this notion of a ‘material risk’ and invites doctors to consider more carefully the process by which they obtain consent. An absence of training of medical practitioners in this recent change in law could lead to an increase in litigation in this area and so this is an important consideration for medical practitioners and their managers.

Further, this case may add more fuel to the fire in the discussion relating to the proposed Medical Innovation Bill (which has made no further progress since first reading on 26 January 2015, the 2014/15 session of Parliament having prorogued), the premise of which is that the threat of clinical negligence litigation is a barrier to innovation. However, it is important for medical practitioners that the (judicial) change to the law (in Montgomery), together with the analysis in this present case, are not viewed as having diminished the legal protection afforded to medical practitioners for any treatment which is supported by a responsible body of medical opinion, in accordance with the Bolam principle which remains good law.

In keeping with the existing, positive cultural shift towards an improved doctor/patient relationship, as demonstrated in the decisions for Chester v Afshar [2004] UKHL 41, [2014] 4 All ER 587 and Montgomery, this case emphasises that the onus is on a patient (and/or client) to take responsibility for acquiring the requisite ‘knowledge’ in order to make an informed choice in relation to whether or not to engage in a course of treatment, undergo a procedure, take a second opinion or pursue a legal claim. At the same time, this case reinforces the requirement for a lawyer or medical practitioner to record the advice given to a patient or client which helps to inform such a choice.

In the context of limitation, some may view this case as an invitation to further test the inherent tension which exists within LA 1980, s 14A and so there may yet be some more mileage in arguments in relation to actual and objective, constructive knowledge.

In Montgomery, we welcomed the Justices of the Supreme Court’s consideration of the important matter of a medical practitioner’s duty and, at some stage it will fall (or ascend, even) to the Supreme Court to unpick the challenges presented by LA 1980, s 14A. When it does, many will look forward to learning about how the existing tensions will be resolved.

Interviewed by Nicola Laver.

The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.

Further guidance

With so many different sources for cases, do you know the status that the court attributes to them for use in court proceedings? For an understanding of the hierarchy of the available reports as well as dealing with ex tempore (oral) judgments and explaining neutral citations download our free Practice Note Law reports: Hierarchy and status of authorities [PDF].

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