No Knowledge of Injury

James v East Dorset Health Authority (CA TLR 7 December)

For a claimant to know of the significance of his injury for the purpose of fixing him with knowledge under s14 of the Limitation Act 1980 he had to know that he had been injured. Accordingly a patient whose condition deteriorated following an operation and who assumed that the operation had not been a success, but who had nothing to alert him to the fact that he had actually been injured during the operation could not be said to have the requisite knowledge for the purpose of triggering the three-year limitation period until he was aware that he had been injured. The court drew an analogy with swab cases when after years of unexplained pain and discomfort following an operation it is discovered that the cause was a swab left in the patient at the operation, no limitation point was ordinarily taken in these cases, and rightly so, where the writ was issued within three years of discovery of the swab. Parliament did not intend to reward those alert to assume that every misfortune was someone else’s fault and to place at a disadvantage those who did not assume the worst when there was nothing to alert them to it.