Smith v Leicester Health Authority

[1998] Lloyd's Rep Med 77

COURT OF APPEAL

Lord Justice ROCH, Lord Justice MANTELL, and Sir Patrick RUSSELL

Limitation — Knowledge — Discretion — Diagnosis of spina bifida in 1952 — Operations in 1953, 1954 unsuccessful — X-rays in 1954 and 1955 showing enlargement of spinal canal — Negligent failure by radiologist to report enlargement — Laminectomy in May 1957 showing cyst in spinal column — Cyst contents aspirated but plaintiff rendered tetraplegic — Plaintiff hearing of possible error in her case in 1983 but advised by Spinal Injuries Association in 1984 that any claim was time barred — In November 1990 plaintiff received her expert's first report — Writ issued on May 22, 1992 — X-rays from 1954 to 1956 were not tracked down by plaintiff's solicitor until 1995 — Whether judge erred in holding that plaintiff had constructive knowledge prior to 1983 that tetraplegia was attributable to omission of defendant — Whether, in considering whether to exercise his discretion in plaintiff's favour under Limitation Act 1980, sect 33 judge misdirected himself on several circumstances that he had to take into account