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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Forbes v Wandsworth Health Authority [1996] EWCA Civ 1318 (14 March 1996) URL: http://www.bailii.org/ew/cases/EWCA/Civ/1996/1318.html Cite as: [1996] 7 Med LR 175, [1996] 3 WLR 1108, [1997] QB 402, (1997) 36 BMLR 1, [1996] EWCA Civ 1318, [1996] 4 All ER 881

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
(HIS HONOUR JUDGE P BAKER, QC)
QBENF 95/0126/C

		Royal Courts of Justice Strand London WC2
		14 March 1996

Stuart-Smith L.J.

1. This is an appeal from a ruling on a preliminary issue of His Honour Judge Baker QC, sitting as a Deputy High Court Judge on 11 August 1994, that the Plaintiff's claim is not statute-barred under the Limitation Act 1980 ("the Act"). The action concerns an allegation of medical negligence in relation to the treatment of Nelson Forbes ("the deceased") who died pending this appeal on 5 February 1995. It relates to the treatment received by the deceased during his admission to the Defendants' hospital in October 1982. Mrs Forbes, his widow and personal representative, was substituted as Plaintiff under RSC Order 15, rule 7 on 2 August 1995.
2. The writ was issued on 10 December 1992, more than seven years after expiry of the primary limitation period. The question whether the action is statute-barred depends upon whether the date of knowledge of the deceased as defined in s. 14 of the Act was within three years of the issue of the writ. If it was not, then the question arises whether s. 11 of the Act should be disapplied, having regard to the provisions of s. 33.
3. The Judge, who in addition to the affidavit evidence, heard oral evidence from the deceased and Mrs Forbes, held that the deceased had no actual or constructive knowledge within the meaning of s. 14 until he had, though his solicitors, received the advice of a vascular surgeon in October 1992. He therefore decided the issue in the Plaintiff's favour. He expressed the view that had he reached a contrary conclusion he would have exercised his discretion under s. 33 in favour of the Plaintiff.
4. The deceased was 56 when he was admitted to the Defendants' hospital on 16 October 1982. He had a long history of circulatory problems, including two previous by-pass operations, one in each leg. These operations were carried out in 1975 and 1978; they were successfully carried out by Mr. Gillespie. It was because of these previous successful operations that the deceased, who then lived in Yorkshire, wished to be treated again by Mr. Gillespie, and he was therefore transferred to the Defendants' hospital.
5. There is uncertainty as to the precise date, whether it was 24 or 25 October, that a further by-pass operation was attempted by Mr. Gillespie. Nothing turns on the precise date, and I shall take as the date of the first operation as 24 October. It was not successful and a second operation was carried out at 11.45 a.m. the next day, 25 October. Unfortunately that too was not successful. The deceased was told that in order to prevent gangrene, and save his life, it was necessary to amputate the leg. He eventually agreed to this step and the operation was carried out on 5 November 1982. It is clear that if he had not had the operation the leg would probably have had to be amputated in due course in any event.
6. It is not alleged that the decision to operate or the decision to amputate was wrong. The sole allegation is that it was negligent not to perform the second operation sooner, specifically as soon as possible after 5 p.m. on 24 October when no pulses could be felt in the deceased's left foot and the foot was cool. It is alleged that if Mr. Gillespie had operated sooner, the amputation could have been avoided. The statement of claim does not explain why this should be so and the information provided by the Plaintiff's solicitor as to the basis of the case is sparse in the extreme. He merely states in his affidavit that he obtained a report in October 1992 from an unnamed vascular surgeon and "the report concluded that the medical staff employed by the Defendants delayed, following the occlusion of the graft (on 24 October) in initiating action to restore the blood supply such that irreversible muscle ischaemia resulted in amputation". It must, I think, be the Plaintiff's case that if the second operation had been performed sooner, it would have had a good chance of success. But if it too failed, despite more prompt action, it would seem that the leg would have required amputation.
7. It was not until 1991 that the deceased took any steps to obtained professional advice. By that time Mrs Forbes was finding the strain of looking after the deceased to be increasingly arduous. She went to stay with her daughter, who suggested that it might be possible to obtain some money to help with his care. She suggested consulting a solicitor. Somewhat reluctantly it seems, the deceased agreed to this and Mr. Burman, the Plaintiff's solicitor, was consulted on 26 June 1991. He took steps to obtain the medical records which were available and instructed a vascular surgeon to advise on the basis of those records. His report was provided in October 1992.
8. S.11 of the Act provides, so far as is relevant, as follows:

"(1) This section applies to any action for damages for negligence....where the damages claimed by the plaintiff for the negligence....consist of or include damages in respect of personal injury.

(3) An action to which this section applies shall not be brought after the expiration of the period applicable in accordance with subsections (4) or (5) below.

(4) Except where subsection (5) below applies, the period applicable is three years from -

(a) the date when the cause of action accrued;

(b) the date of knowledge (if later) of the person injured."

9. S. 14 provides, so far as is relevant,:

"(1) In sections 11 and 12 of this Act references to a person's date of knowledge are references to the date on which he first had knowledge of the following facts -

(a) that the injury in question was significant; and

(b) that the injury was attributable in whole or in part to the act or omission which is alleged to constitute negligence, nuisance or breach of duty;

and knowledge that any acts or omissions did or did not, as a matter of law, involve negligence, nuisance or breach of duty is irrelevant.

(2) For the purposes of this section an injury is significant if the person whose date of knowledge is in question would reasonably have considered it sufficiently serious to justify his instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment.

(3) For the purposes of this section a person's knowledge includes knowledge which he might reasonably have been expected to acquire -

(a) from facts observable or ascertainable by him; or

(b) from facts ascertainable by him with the help of medical or other appropriate expert advice which it is reasonable for him to seek;

but a person shall not be fixed under this subsection with knowledge of a fact ascertainable only with the help of expert advice so long as he has taken all reasonable steps to obtain (and, where appropriate, to act on) that advice."

10. The Judge held that the Plaintiff had no actual knowledge because he had no reason to suspect or think that the removal of his leg was due to the act or omission of the Defendants that was alleged to constitute negligence. In this case the negligence is said to consist of an omission, namely to operate sooner than in fact was done. It is said that this delay, from about 5 p.m. (or such later time as is appropriate) until 11.45 a.m. the next day, was the cause of the injury and that delay was negligent. It is not sufficient that the Plaintiff knew that he had lost his leg and that there was in fact a period of time between the first and second operation.
11. Mr. Limb, on behalf of the Plaintiff, argued before the Judge and in this Court that the Plaintiff did not even know that he was injured (within s. 11 (4)) or that the injury was significant (within s. 14 (1) (a)) until he obtained the medical advice in 1991. He submits that there is a problem in medical negligence cases where the Plaintiff is diseased or injured prior to treatment and does not necessarily expect to be free from disease or injury after treatment. The disease or pre-existing injury may continue or worsen after treatment and such deterioration may be no more than a natural continuation of the problem. The difficulty in determining what amounts to a significant injury is illustrated in the case of Nash v. Eli-Lilly [1993] 1 WLR 782. In that case, which was concerned with the drug Opren, it was said by the Court of Appeal at p. 791 that `until the degree of photosensitivy, for example, was sufficient to indicate that the drug was causing a significant injury, namely an effect completely outside that of an acceptable side effect, it could not be said that the patient was aware of a significant injury'. Whatever may be the position with unwanted side effects of drugs, which may be expected to a greater or lesser extent, I have no doubt that Mr. Spencer, on behalf of the Defendants, is right in submitting that the injury in this case was the amputation - as pleaded in the statement of claim - and that it was a significant one.
12. This point was considered by the Court of Appeal in Dobbie v. Medway Health Authority [1994] 1 WLR 1234 where a similar argument was advanced. Steyn L.J. said (at p. 1248):

"The simple answer to this construction is to be found in the ordinary meaning of the words of section 14 (1). The contextual meaning of "injury" in section 14 (1) is a personal injury without any further gloss other than the express definition of "significant" in section 14 (2)."

13. In Broadley v. Guy Clapham [1993] 4 AER 439 at p. 443 Turner J., stating the test for what amounted to an injury, said `the Plaintiffs know that what she was suffering from was something other than the direct and inevitable consequence of the operation that was performed'. That may well be a sufficient test in this type of case, for it was certainly not an inevitable consequence of the operations on 24 and 25 October that the Plaintiff would lose his leg. But it does not cover the case where the Plaintiff is advised to have his leg removed, but it is said that the advice was negligent. It seems to me that the injury is still the loss of the leg, the cause of the injury was the surgeon's advice. In my opinion, therefore, the Plaintiff knew of the injury and knew that it was significant within a very short time of the operation.
14. Did the Plaintiff know prior to receipt of the opinion by the vascular surgeon in 1991 that the loss of his leg was attributable in whole or in part to the omission to operate sooner than 11.45 a.m. on the second day?
15. The Judge's approach is supported by two decisions of this Court. The first is the unreported case of Smith v. West Lancashire Health Authority [1995] PIQR 514. On 12 November 1981 the plaintiff sustained injury to his right hand. A doctor employed by the defendant Health Authority diagnosed an uncomplicated fracture to the ring finger, but failed to diagnose a fracture of the little finger or dislocation of the ring finger. Conservative treatment was prescribed. On 5 January 1982 the plaintiff had to undergo an urgent operation for the open reduction of the fracture dislocation. Delay was the problem, as in this case. Russell L.J., with whose judgment Wall J. agreed, said (at p. 6A-D):

"As earlier indicated, the omission alleged in this case was essentially the omission to operate promptly. It was that omission which allegedly constituted negligence, together with the failure properly to diagnose. When did the patient first have knowledge of that omission? The reality is that he did not know that there had been an omission to operate at all until he was so advised by Mr. Downie to that effect. True, he knew that he had not had an operation on or about 12 November 1981, but that knowledge cannot, in my judgment, be knowledge of an omission "which is alleged to constitute negligence". One cannot know of an omission without knowing what it is that was omitted. In this case, that was an operation to reduce the fracture dislocations, as opposed to conservative treatment. Simply to tell the plaintiff that the first course of treatment had not worked, is not the same as imbuing the plaintiff with a knowledge of an omission to operate."

16. The second case is Hallam-Eames v. Merrett Syndicates Limited unreported, CA Transcript 13 January 1995. Hoffmann L.J. gave the judgment of the Court, consisting of Sir Thomas Bingham MR and Saville L.J. At p. 7, after reciting the trial judge's construction of the similar provision contained in s. 14A (8) (a), he said:

"In our judgment this is an over-simplification of the reasoning in Broadley and Dobbie if all that was necessary was that a plaintiff should have known that the damage was attributable to an act or omission of the defendant, the statute would have said so. Instead, it speaks of the damage being attributable to "the act or omission which is alleged to constitute negligence". In other words, the act or omission of which the plaintiff must have knowledge must be that which is causally relevant for the purposes of an allegation of negligence."

17. And at p. 9 he said:

"The plaintiff does not have to know that he has a cause of action or that the defendant's acts can be characterised in law as negligent or falling short of some standard of professional or other behaviour. But, as Hoffmann L.J. said in Broadley, the words `which is alleged to constitute negligence' serve to identify the facts of which the plaintiff must have knowledge. He must have known the facts which can fairly be described as constituting the negligence of which he complains. It may be that knowledge of such facts will also serve to bring home to him the fact that the defendant has been negligent or at fault. But that is not in itself a reason for saying that he need not have known them."

18. Mr. Spencer submitted that was too narrow a construction.
19. First, he referred to a dictum of May L.J. Davies v. Ministry of Defence CA 26.7.85 (unreported)l where he rejected the construction that "attributable" was the same as "caused by". He said it means "capable of being attributed to", in that case the working conditions to which he was exposed by the respondents. This approach was approved and adopted by the Court of Appeal in Wilkinson v. Ancliff (BLT) Ltd. [1986] 3 AER 427 (Slade and Croom-Johnson LJJ).
20. So far so good; but it does not answer the question here.
21. Secondly, he relied on certain dicta in the judgments of the Court of Appeal in Dobbie's case. In that case the plaintiff had her breast removed; shortly afterwards she learned that the lump in it was not cancerous. So it is clear that she had actual knowledge that a mistake had been made. At p. 1240 Sir Thomas Bingham MR said:

"It cannot be plausibly be suggested that the words "act or omission" import any requirement that such act or omission should be actionable or tortious, since that would stultify the closing words of section 14 (1) and would moreover flout the recommendation on which the legislation was admittedly founded. In Wilkinson v. Ancliff (BLT) Ltd. [1986] 1 WLR 1352, 1362H, reference was made to a submission of counsel based on the use of the words "act or omission" rather than "conduct" in section 14 (1) (b). I do not understand the court to have accepted that submission. But it is customary in discussing tortious liability to refer to acts and omissions and I do not think the meaning of section 14 (1) (b) would be any different had the reference been to conduct. Time starts to run against the claimant when he knows that the personal injury on which he founds his claim is capable of being attributed to something done or not done by the defendant whom he wishes to sue."

22. With all respect to the Master of the Rolls, it may well be that acts or omissions of the defendant can be said to be his conduct; and in that case the defendant's act, which was subsequently alleged to be negligent, was the removal of the breast; but it is not easy to see how in the case of an omission this statement gives effect to the words "which is alleged to constitute negligence".
23. At p. 1248, after the passage I have already cited, Steyn L.J. continued:

"The word "act" does not by itself describe something which ought not to have been done. And it would be impossible to attach a qualitative element to "omission" but not to "act"."

24. Those passages taken at face value do tend to support Mr. Spencer's submission that all that the Plaintiff needs to know is that there was a period of time between the first and second operations, that the second operation was not successful, and that in consequence of the second operation not being successful, his leg was amputated.
25. Next, Mr. Spencer submits that on a proper analysis, the facts of this case are indistinguishable from those in Jones v. Liverpool Health Authority CA unreported Transcript 19 July 1995.
26. That was a case where the ultimate complaint was delayed treatment complicated by lack of anticoagulant treatment. The original cause of the problem arose when an arteriogram was performed on 5 September 1974 and infection was set up in the plaintiff's leg as the catheter was inserted into his femoral artery. That was a risk of the operation and was not negligent, although at first the plaintiff did not realise that. It was not until the plaintiff was advised by a vascular surgeon in October 1991 (after issue of a writ in 1987) that it was the delay in taking corrective treatment until an operation on 23 October 1974 and lack of anticoagulant treatment was eventually established as the basis of the claim in negligence.
27. Mr. Spencer submits that the non-negligent injury caused by the catheter is equivalent to the underlying pathology in the present case. That is what required treatment; Mr. Jones knew it was not treated until 23 October 1974, and he knew it was then unsuccessfully treated until the following year. Those facts, contends Mr. Spencer, are equivalent to the knowledge the deceased had here. He knew the first operation was unsuccessful, he knew when the second operation was performed, he knew it had been unsuccessful. But the facts of that case are complicated by the fact that in 1977 the plaintiff was advised by a surgeon, Mr. Bloor. He said that the insertion of the catheter was not due to negligence, which was the only issue considered at that stage. He did not deal with the question of delay at all.
28. Although it is possible to equate the facts in that case with the present case, it seems to me that in the judgment of the Court, the part played by Mr. Bloor was crucial. At p. 17 Glidewell, with whose judgment Morritt L.J. and Sir John May agreed, said:

"To use Hoffmann L.J.'s phrase in Broadley v. Clapham Health Authority, when the Plaintiff received Mr. Bloor's report, he knew the facts which constitute the essence of his present complaint. What he did not know at that stage was that, to use Steyn L.J.'s phrase in Dobbie v. Medway Health Authority, he had a possible cause of action. In my judgment, on the authorities to which I have referred, it is clear that knowledge of the latter kind is not necessary to affect the Plaintiff with knowledge for the purposes of section 14 (1) and (3). Put another way, if a person has been advised by one Consultant, who considers on the information put before him that the Plaintiff probably does not have a cause of action, and years later the Plaintiff is advised by another Consultant that, upon precisely the same facts he has a possible cause of action, he cannot thereafter claim that he did not gain knowledge for the purposes of sections 11 and 14 of the Act of 1980 until he received the later opinion."

29. In many medical negligence cases the plaintiff will not know that his injury is attributable to the omission of the defendant alleged to constitute negligence in the sense that it is capable of being attributable to that omission until he is also told that the defendant has been negligent. But that does not alter the fact that there is a distinction between causation and negligence; the first is relevant to s. 14 (1); the second is not. The fact that in such cases it may be necessary for the plaintiff also to know of the negligence before he can identify the omission alleged to have been negligent is nothing to the point. It does not mean that he falls foul of the closing words of s. 14 (l). For these reasons, I consider that the Judge was correct in holding that there was no actual knowledge.
30. The Judge dealt with the question of constructive knowledge at p. 12B-G. He said:

"As to constructive knowledge, the approach, it is submitted, and I agree, is to determine what the Plaintiff should have realised or obtained, asking no more of him than is reasonable. That is a standard of reasonableness objective, but must take into account his position, circumstances, character and intelligence. That follows from Nash and Eli Lilley.

And so would it have been reasonable to expect the Plaintiff to make enquiries before in fact he did? On that issue, the burden is on the Defendants to show that he should have done. In my judgment, nothing occurred in the intervening period between his treatment and the approach to solicitors - which may initially, from what I made of the evidence, not even been of itself particularly to launch a negligence action, the approach to solicitors when it was made. It may well be that if the Plaintiff had been a dissatisfied or a complaining man he might have started a train of enquiry somewhat earlier, but as I have said, he was a man who had every confidence in those treating him."

31. Turning to the words of s. 14 (3), it is clear that the deceased could reasonably have been expected to acquire the relevant knowledge with the help of suitable medical advice. The real question is, whether it was reasonable for him to seek that advice. If it was, he took no steps at all to do so. One of the problems with the language of s. 14 (3) (b) is that two alternative courses of action may be perfectly reasonable. Thus it may be perfectly reasonable for a person who is not cured when he hoped to be to say `Oh well, it is just one of those things. I expect the doctors did their best"; alternatively the explanation for the lack of success may be due to want of care on the part of those in whose charge he was, in which case it would be perfectly reasonable to take a second opinion. And I do not think that the person who adopts the first alternative can necessarily be said to be acting unreasonably. But he is in effect making a choice, either consciously by deciding to do nothing, or unconsciously by in fact doing nothing. Can a person who has effectively made this choice many years later, and without any alteration of circumstances, change his mind and then seek advice which reveals that all along he had a claim? I think not. It seems to me that where, as here, the plaintiff expected or at least hoped that the operation would be successful and it manifestly was not, with the result that he sustained a major injury, a reasonable man of moderate intelligence, such as the deceased, if he thought about the matter, would say that the lack of success was `either just one of those things, a risk of the operation or something may have gone wrong and there may have been a want of care; I do not know which, but if I am ever to make a claim, I must find out'.
32. In my judgment, any other construction would make the Act unworkable since a plaintiff could delay indefinitely before seeking expert advice and say, as the deceased did in this case, I had no occasion to seek it earlier. He would therefore be able, as of right, to bring the action, no matter how many years had elapsed. This is contrary to the whole purpose of the Act which is to prevent defendants being vexed by stale claims which it is no longer possible to contest. The primary limitation period in personal injury actions is therefore three years from the date when the cause of action occurred. This is modified when the plaintiff does not know, and could not reasonably discover with the assistance of expert advice, matters essential to his cause of action. If he can bring himself within the provisions of s.11 (4) and s. 14 he has an absolute right to bring the action and no question of discretion arises. S.33, in my opinion, is designed to give the Court an ultimate discretion in cases such as this, so that it can allow the plaintiff to sue if it is equitable to do so.
33. I referred earlier to a subsequent alteration of circumstances. An example of this would be if the initial injury, though significant, appeared to be not so serious as to affect the plaintiff's enjoyment of life, but subsequently proved to be much more serious, the fact that the plaintiff initially did nothing to find out the cause of the injury should not preclude him; the time to take advice may well have been when the gravity of the injury became apparent.
34. Something may turn on the advice or information that the plaintiff is given by the defendant's employees in whose care he was. If he was deceived or misled into thinking that nothing had gone wrong, when it was known or suspected that an error was made, then the plaintiff's inaction in reliance on that advice should not be held against him. But there is nothing of that sort here. In his evidence Mr. Forbes said that he had confidence in Mr. Gillespie and that at no time was it suggested to him that a mistake had been made or that delay had led to the amputation. That is hardly surprising because it is clear that Mr. Gillespie is still confident that no mistake was made. And I decline to infer that any of the Defendants' personnel involved thought or suspected that there had been a mistake. The deceased does not suggest that any explanation for the lack of success was given to him, other than, as is alleged in paragraph 5 of the Defence, Mr. Gillespie had told him prior to the operation that because of the poor state of his arteries the operation might not be a success.
35. In my judgment, a reasonable man in the position of the deceased, who knew that the operation had been unsuccessful, that he had suffered a major injury which would seriously affect his enjoyment of life in the future, would affect his employability on the labour market, if he had any, and would impose substantial burdens on his wife and family in looking after him, if he is minded to make a claim at any time, should and would take advice reasonably promptly.
36. I do not think this will result in patients becoming `action-happy' or in ambulance chasing solicitors touting for work. Where the injury or disability is not serious, most patients do not dream of suing unless it is obvious that something has gone wrong which suggests want of care.
37. The Judge seems to have thought in the passage I have cited that the fact that nothing occurred between the deceased's return from hospital and his consulting a solicitor in 1991 in some way excused him. I do not think this can be so. Otherwise, a plaintiff could delay indefinitely in seeking advice. Nor do I consider that the fact that the deceased had confidence in Mr. Gillespie absolves him. Most patients have confidence in their doctors until they find they have made a mistake. And, as Mr. Spencer pointed out, if the question is raised, has Mr. Gillespie made a mistake, one cannot answer that question in the negative by saying that you have confidence in him.
38. The Judge directed himself that the standard of reasonableness was objective, but must take into account his position, circumstances, character and intelligence and cited the judgment of this Court in Nash v. Eli Lilly & Company (supra). At p. 799F Purchas L.J. said:

"The standard of reasonableness in connection with the observations and/or the effort to ascertain are therefore finally objective but must be qualified to take into consideration the position, and circumstances and character of the plaintiff. Turning to subsection (3) (b), this subsection deals with facts ascertainable with the help of advice from outside expert sources, which, in the circumstances of the case, it is reasonable for the plaintiff to seek. As the whole of this section is dealing with claims for personal injury the specific reference to medical advice is understandable; but it clearly extends to other experts whom it would be reasonable to expect the plaintiff to consult. In considering whether or not the inquiry is, or is not reasonable, the situation, character and intelligence of the plaintiff must be relevant."

39. Like Roch L.J. I have difficulty in seeing how the individual character and intelligence of the Plaintiff can be relevant in an objective test. Similar problems have arisen in the criminal law in relation to the defence of provocation and duress. In both these cases there is a dual test, the subjective one, was the accused in fact provoked or overborne by threats to act as he did, and the objective one, would an ordinary person sharing the characteristics of the accused be provoked to act as he did, or in the case of duress, would an ordinary person of reasonable firmness, sharing the accused's characteristics, have given way to the threats. This objective test has given rise to considerable difficulty in recent cases, especially in the case of duress as to what characteristics are relevant and what are not. The mere fact that an accused is more suggestible, vulnerable or timid than a normal person of his age and sex is not relevant because it undermines the objective test which requires him to be of reasonable firmness of mind (see R. v. Hurst [1995] 1 CAR 82); the jury have to consider how a person sharing a characteristic of the accused, in the sense for example that a young person, a pregnant woman or a person suffering a severe personal or mental disability would react. Since the jury may think that such people in general may be more vulnerable to pressure (see also the judgment of R. v. Bowen, unreported, 5 March 1996).
40. It does not seem to me that the fact that a plaintiff is more trusting, incurious, indolent, resigned or uncomplaining by nature can be a relevant characteristic, since this too undermines any objective approach.
41. I have come to the conclusion therefore that in the circumstances of this case the deceased did have constructive knowledge. That knowledge could not be attributed to him immediately he came out of hospital; clearly he would have to have to have time to overcome the shock, take stock of his grave disability and its consequences and seek advice. That would take about 12 - 18 months.
42. It is not necessary in this case to consider the closing words of s. 14 (3), since the deceased took no steps to obtain advice.
43. That being so, it is necessary to consider the effect of s. 33 of the Act. The Judge expressed the opinion that had he not found in the Plaintiff's favour under s. 14, he would have exercised his discretion under s. 33 in his favour. This gives rise to the question whether in the circumstances this Court must now exercise its discretion afresh, if we differ from the Judge on his primary finding, or whether the Defendants are appealing against an exercise of discretion, with the result that the restrictive approach that this Court adopts to such appeals should apply. But for one feature, this might prove to be a difficult and important question. That feature is the death of Mr. Forbes between the trial of the preliminary point and the appeal. That is a new situation which to my mind undoubtedly affects the exercise of discretion under s. 33, if for no other reason than that the potential damages recoverable for the benefit of the estate of the deceased are significantly less than they would have been if the deceased were still alive. No damages for pain, suffering and loss of amenity can be recovered for any period after the death, and the claim for future cost of care, aids and appliances, said by Mr. Burman in his affidavit to amount to an annual cost of £13,000, will not be recoverable. I adhere to the view I expressed in Dale v. British Coal Corporation [1992] PIQR 373 at p. 385, with which I understand Steyn L.J. to have agreed, though Dillon L.J. reserved his opinion on the point (see p. 386).
44. Accordingly, in my opinion, this Court must exercise its own discretion in the light of the relevant facts, paying due regard to any findings of fact made by the trial judge. S. 33 of the Act, so far as is relevant, is in these terms:

"(1) If it appears to the court that it would be equitable to allow an action to proceed having regard to the degree to which -

(a) the provisions of section 11 or 12 of this Act prejudice the plaintiff or any person whom he represents; and

(b) any decision of the court under this subsection would prejudice the defendant or any person whom he represents;

the court may direct that those provisions shall not apply to the action, or shall not apply to any specified cause of action to which the action relates.

(3) In acting under this section the court shall have regard to all the circumstances of the case and in particular to -

(a) the length of, and the reasons for, the delay on the part of the plaintiff;

(b) the extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the plaintiff or the defendant is or is likely to be less cogent than if the action had been brought within the time allowed by section 11 or (as the case may be) by section 12;

(f) the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received.

(4) In a case where the person injured died when, because of section 11, he could no longer maintain an action and recover damages in respect of the injury, the court shall have regard in particular to the length of, and the reasons for, the delay on the part of the deceased."

45. The first point that Mr. Spencer makes is that s. 33 is not relevant at all in the present circumstances and the Court has no jurisdiction to exercise its discretion. The Plaintiff is now Mrs Forbes, who is suing on behalf of the estate. As such, Mr. Spencer submits, that she is not representing persons within ss. 1 (a). That expression is only apt to deal with a claim under the Fatal Accidents Acts, where the claim is brought for the benefit of identified beneficiaries. Furthermore, he says that an estate is not a person or persons.
46. Ss 4, however, clearly contemplates that an action may be brought in respect of personal injuries sustained by a person who is deceased before the claim is brought. I see no reason why it should not equally apply if he dies after an action is brought. Such an action is brought for the benefit of the estate, and ultimately for the benefit of the beneficiaries. Something may turn on the identity of these; if they are not the deceased's dependants, but some charity or other institution like a cats' home, I should be inclined to think that the prejudice was small. But I am prepared to assume in this case that the Plaintiff herself as widow is the main beneficiary, and that she has a need for any sums that might be awarded.
47. So far as the Defendants are concerned, in addition to the inevitable prejudice in losing a limitation defence, a number of specific matters are put forward. First, as a result of certain insurance arrangements which have recently occurred, the Health Authority will have to bear a greater share of the damages and costs than it would have done previously, when more favourable arrangements existed with the medical defence institutions.
48. Secondly, medical records, including the operating theatre register, cannot be found. And, although the charts are available, it is no longer possible to identify the nurses on duty during the critical period of 5 p.m. on 24 October to 11 a.m. on 25th October. The Judge said he bore this in mind. But it is difficult to know what weight he attached to it. Since the allegations in the statement of claim relate to this period, and include failure to act by the nursing staff, it seems to me that this is a potentially serious prejudice to the Defendants not to be able to call these witnesses. Moreover, it is clear from his statement exhibited to an affidavit of the Plaintiff's solicitor that Mr. Gillespie now has no recollection of the matter, other than what appears in the records. Mr. Gillespie undoubtedly took a very keen interest in this patient, and it seems reasonable to suppose that much nearer the time he would have had a recollection which went further than the records now extant, which do not include the operating theatre register. Although in the defence the Defendants' justify their actions in the light of the information recorded in the extant records, particularly where the alleged sin is one of omission and not commission, the Defendants are gravely prejudiced by the delay, whereas the Plaintiff, even when the deceased was alive, can have little or no factual input into the case, is not. Her case really depends on the acceptance of the view of the unknown vascular surgeon.
49. Mr. Limb sought to counter this argument by submitting that most medical negligence cases are conducted on the basis that the defendant's witnesses can remember nothing that is not in the contemporary records, and therefore there is no handicap to the Defendants in this case since the records, save for the operating register, are extant. I do not agree; that may well be so when there is a very long delay. But, if the claim is made reasonably promptly, the defendant has an opportunity of taking statements from all relevant witnesses who are still available. Their memories can frequently be stimulated by reference to the contemporary records; something which many years later is quite impossible, even if the witnesses can be identified. There is, I think, a striking example of that in this case. Paragraph 11 (d) of the defence states that the nursing staff over night were not able to feel a pulse in the leg, and this is relied upon as a contraindication to immediate operation. This is based on the hospital notes. Mr. Limb said that it would be the evidence of the vascular surgeon that nurses often made mistakes and think that they can feel pulses when they cannot. Much may therefore depend on the skill and experience of the nurses involved; but the Defendants cannot identify them. There is a further problem caused by excessive delay in medical negligence cases. The Court is concerned with acceptable standards of medical practice in 1982. With the best will in the world it is not always easy, where medical science and practice has progressed over the years, for experts to put themselves back into the standard of the day, now fourteen years ago. Although in theory this may be a difficulty that affects both sides, in practice it often presents more difficulty for the defence since recent advances which affect current opinion have to be ignored. To my mind, the Judge, who understandably did not deal at any length with this aspect of the case because of his view that the limitation period had not expired, seriously underestimated the evidential prejudice to the Defendants and in this respect, I think, if no other, his exercise of discretion was plainly wrong.
50. There is a further aspect which is relevant to consideration of the exercise of discretion under s. 33. That is the strength of the Plaintiff's case. The Judge was not invited to consider this. But if, as I consider we must, this Court must exercise its discretion afresh, it is a relevant consideration. In the Dale case I said at (pp. 380-381):

"The first concerns the relevance of the plaintiff's prospects of success in the action and the evidence necessary to be adduced to establish those prospects. Although not one of the matters specifically dealt with in paragraphs (a) to (f) of section 33 (3), it is one of the circumstances of the case which the court should take into account in considering the balance of hardship. Plainly it is more prejudicial to a plaintiff to be deprived of a cause of action when it is almost bound to succeed, as for example an injured passenger in a motor vehicle, than one that looks highly speculative. Equally, although it is always prejudicial to a defendant to be deprived of a defence under the Limitation Act, it may be less inequitable or unfair where the plaintiff has a strong case and more unfair where he has a weak one. But where as here the limitation issue is tried and determined before the merits of the claim, the court cannot and should not attempt to determine the merits on affidavit evidence. All that can be done and should be done is for the judge to take an overall view of the prospects of success; a judge who is experienced in this type of litigation should have no difficulty in doing so."

51. And in Nash v. Eli Lilly & Co. (supra) (at p. 804F) Purchas L.J. said:

"For the reasons given below we accept that in these cases, if it is shown that the claim is a poor case lacking in merit, there may be significant and relevant prejudice to the defendants if the limitation provisions are disapplied."

52. This is especially so where the plaintiff is impecunious, as for example if she is legally aided, since the defendant cannot recover the costs of a successful defence. (See Lye v. Marks & Spencer PLC Times 15 February 1988 CA).
53. The Court can, of course, only take a broad view of the matter at this stage. But in this case the evidence adduced to support the Plaintiff's case is scanty in the extreme and consists of the Plaintiff's solicitor's statement that the report from the unnamed vascular surgeon "criticised the delay and stated that if it had not occurred, on balance of probabilities, the amputation would have been avoided". In Dale's case (at p. 382) I said:

"The onus is on the plaintiff to satisfy the court that the primary limitation period should not apply. He must show that there is evidence which, if accepted, will establish the necessary ingredients of his cause of action. In many cases his own evidence on affidavit may suffice. If it is accepted, then he should succeed. It is not normally appropriate for the defendants to try and counter the evidence at that stage. The matter cannot be tried on affidavit, and as I have said the best the judge can do is to take a view of the prospects. But where it is necessary to show that prudent employers customarily adopt specific precautions not taken by the defendants, or that the defendants knew or ought to have known of some special risk peculiar to the plaintiff, this may well have to be established by expert evidence, which should either be exhibited, or at the very least the plaintiff's solicitor should depose that he is so advised and the source of his information."

54. In this case the Defendants sought disclosure of the Plaintiff's expert's report. This was refused. The District Judge ordered disclosure; but his decision was reversed on appeal, apparently on the basis that the Plaintiff should not be ordered to produce an expert's report without it being in exchange for the Defendants' experts'. The Plaintiff is no doubt entitled to take this stand. But if he does so, he runs the risk that a bald statement culled from it may not carry very much weight.
55. At most here there was some 17 hours delay; in practice it was almost certainly less than that. In a very fully pleaded defence drafted, we are told, from the records still available, the Defendants have set out the factual considerations which determined their course of conduct. We also have a statement from Mr. Gillespie obtained on behalf of and exhibited as part of the Plaintiff's case. Although not surprisingly he does not deal in terms with the allegation now made, he gives reasons why he is now particularly distressed at the allegation of incompetence and negligence and by implication refutes them. It must be borne in mind that in a medical negligence case the plaintiff has to overcome the difficult hurdle of the Bolam test (see Bolam v. Friern Hospital Management Committee [1957] 1 WLR 582). Taking a broad view of the Plaintiff's chances of success on the material available, I have to say that I can only regard them as modest.
56. For all these reasons, I have come to the conclusion that the Court should not exercise discretion in favour of the Plaintiff. I would allow the appeal and determine the preliminary issue in the Defendants' favour.

Lord Justice Evans :

57. In an action claiming damages for personal injury caused by negligence of the defendant, the limitation period is three years from the date on which the cause of action accrued or, if later, "the date of knowledge .... of the person injured" (section 11(4) of the Limitation Act 1980).
58. The injured persons's "date of knowledge" is defined in section 14. The facts which must be known are (a) that the injury was significant (further defined in sub-section (2)), and :-"(b) that the injury was attributable in whole or in part to the act or omission which is alleged to constitute negligence . ...; and knowledge that any acts or omissions did or did not, as a matter of law, involve negligence . . . . is irrelevant" (section 14(1)).
59. The plaintiff in any action of this kind has to prove that he suffered injury which was caused by the negligent act or omission of the defendant. Proof of negligence may require evidence of the practices of `reasonable men' and, where negligence is alleged against a professional of the standard reasonably to be expected of a qualified practitioner placed as the defendant was.
60. The clear wording of sub-section (1) is sufficient to show that the relevant facts are more limited than those which together constitute the cause of action which the plaintiff alleges against the defendant. They are that the injury was "significant" and that it was attributed to an act or omission of the defendant. The defendant must show that the plaintiff knew these facts in order to establish the limitation defence. To assert that the limitation period does not begin to run until the plaintiff also knows that the alleged act or omission was also actionable or tortious would be to "stultify the closing words" of the sub-section (per Sir Thomas Bingham M.R. in Dobbie v. Medway H.A. [1994] 1 WLR 1234 at 1240).
61. In most personal injury cases the statutory tests are unlikely to be difficult to apply, but it has already become apparent from a number of decided cases that problems do arise where medical negligence is alleged. The present case is an example of this. First, what is meant by "injury"? Where the plaintiff has undergone surgery with his or her informed consent, the wound is not an "injury" in a legal sense at all. But amputation is the most explicit form of "injury" in any other sense, and I agree with Stuart-Smith L.J. for the reasons he gives that Mr Forbes suffered significant injury within section 14 when his leg was amputated in the further operation carried out on 5 November 1982.
62. When he brought this action in December 1992 (he has since died), Mr Forbes alleged that the cause of this injury was the negligence of those who treated him on October 24/25 1982. They operated in the afternoon in order to relieve circulatory problems in his leg, but the operation was unsuccessful. They operated again at 1145 the following morning, but circulation was not restored. The amputation became necessary in order to prevent gangrene and to save Mr Forbes' life.
63. He knew, therefore, that Mr Gillespie, the surgeon, and his team had caused the injury which he suffered. It is not suggested that the operations, though the first two were unsuccessful, were not properly and competently carried out. The allegation, so far as can be ascertained from the Statement of Claim and the plaintiff's solicitor's affidavit, which refers to an unnamed consultant vascular surgeon, is that the second operation should have been performed more promptly, on the evening of October 24 or during the night, and not left until the following day.
64. So Mr Spencer contends on behalf of the defendants that all the statutory ingredients of knowledge were present to Mr Forbes when or soon after the amputation took place. Putting aside all question of negligence or fault, as section 14(1) requires one to do, he submits that Mr Forbes knew then that Mr Gillespie or his team were responsible for the delay which in fact occurred. He knew about his injury and who had caused it. The Court of Appeal rejected in Dobbie v. Medway H.A. the contention that the limitation period did not commence until he also knew that "something had gone wrong" (ibid p.1240).
65. There is, however, in my judgment a vital difference between the facts of Dobbie and the present case. There, the cause of the injury was the alleged negligence of the defendant surgeon in removing the plaintiff's breast when it was not cancerous as he supposed. Negligent or not, that was the defendant's positive act. The present case on the other hand is one of omission. It is alleged that the surgeon or his team were negligent in failing to perform the second operation before they did. That omission was the cause of the plaintiff's injury, if negligence is proved.
66. The defendants say that because Mr Forbes knew that he was not operated on until the following morning, therefore he knew, putting all questions of fault or negligence on one side, that there was this omission and that delay had occurred. Mr Spencer relies among other authorities on the following passage in Steyn L.J.'s judgment in Dobbie v. Medway H.A. :-"The word "act" does not by itself describe something which ought not to have been done. And it would be impossible to attach a qualitative element to "omission" but not to "act." (p.1248).
67. I respectfully agree that the statute excludes any qualitative element from either acts or omissions, but in my judgment it is impossible to identify an omission except by reference to an act which could have been done. It would be wrong and contrary to the section to say "should have been done" or "ought to have been done"; but the fact that nothing was done does not constitute an "omission", in my view, unless something could have been done - regardless of whether it ought to have been done or not. Certainly, the plaintiff's injury cannot be said to be attributable to any omission by the defendant unless the defendant could have acted to prevent it.
68. Of what fact, therefore, was Mr Forbes ignorant until he received the medical advice which led to him bringing these proceedings for negligence in 1992? I would say that he did not know until then that there was, as is now alleged, a lost opportunity to prevent the injury which he later suffered. That is a question of medical science of which he was unaware. It is a different question depending on medical practice whether the operation should nave been carried out sooner than it was. That is the question whether the omission was negligent, which is not relevant under section 14(1).
69. I believe that this conclusion is consistent with other authorities to which Stuart-Smith L.J. has referred, including Smith v. West Lancashire H.A. [1995] PIQR 514 (Russell L.J.) and Hallam-Eames v. Merrett Syndicates Ltd. (C.A. 13 January 1995). The decision in Jones v. Liverpool H.A. (C.A. 19 July 1995), I would agree, depends upon the part played in that case by the first consultant, Mr Bloor, as described in the passage from the judgment quoted by him.
70. I agree, therefore, both with Stuart-Smith L.J. and with the judge that actual knowledge within section 14(1) has not been proved against the plaintiff here.

Constructive knowledge

71. Section 14(3) adds to the plaintiff's actual knowledge, such knowledge as "he might reasonably have been expected to acquire - . . . (b) from facts ascertainable by him with the help of medical or other appropriate expert advice which it is reasonable for him to seek :", followed by :-"but a person shall not be fixed under this sub-section with knowledge of a fact ascertainable only with the help of expert advice so long as has taken all reasonable steps to obtain (and, where appropriate, to act on) that advice."
72. My first observation on this sub-section is that it is concerned, like sub-section (1), with the facts of which the plaintiff had knowledge, or is deemed to have had knowledge, for the purposes of section 11. The relevant fact in the present case, for the reasons given above, is that there was, as is alleged, an opportunity for Mr Forbes' leg to be saved if a second operation was performed earlier than it was, an opportunity which was lost. This fact must be taken to have been within his knowledge if it was ascertainable with the help of medical advice which it was reasonable for him to seek (sub-section 3(b). I agree that the qualification "but a person shall not be fixed" does not raise any separate issue in the present case. The question is, should it be held that it was reasonable for Mr Forbes to seek medical advice, after the amputation (1982) and more than three years before the Writ was issued (before 1989)? If he had done so, than it must be assumed that he would have been told the alleged fact that his leg could have been saved by a prompt second operation in October 24, 1982.
73. I have found this the most difficult issue in this case. Part of the difficulty arises because the evidence is incomplete, as it must necessarily be when the limitation defence is decided as a preliminary issue. What advice was given to Mr Forbes before the first operation? Was he told that there was a substantial risk, if the operation failed, that his leg would have to be amputated? If so, within what sort of period? What was he told were the chances of success, or of failure?
74. We may infer that the reason for the operation was to prevent the risk that circulation in the leg would become blocked, leading to gangrene and the very precaution that become necessary - amputation of the leg. But Mr Gillespie must have held out some chances of success, and so it can be said that the failure of both operations and the consequent need to amputate must have been some indication, not that "something had gone wrong", but that there had been a chance to save the leg, which had not materialised in the result.
75. Whilst this does not establish actual knowledge of the (alleged) lost opportunity to save his leg, nevertheless it may have been sufficient to make it reasonable for Mr Forbes to take medical advice - i.e. to consult another doctor - when the outcome was as significant an "injury" as it was.
76. Against this, a striking feature of the case is the implicit trust, no doubt well justified, which he had in Mr Gillespie's professional skills. To say that he ought reasonably to have taken a second opinion is to encourage, it is suggested, all post-operation patients to do just that, merely on the off-chance that they may find that they can recover damages for negligence. This in its turn could encourage "ambulance chasers" among lawyers and diminish the trust which builds up between patients and the overwhelmingly majority of doctors who treat them.
77. The answer to this submission, I am sure, is that each case must depend upon its own facts. The statute applies a test of reasonableness, and it would be wrong to introduce categories or general rules as to what is reasonable, or not.
78. Another feature of the present case is that Mr Forbes consulted a second doctor when he did, seven or eight years after the amputation, not because he believed, even then, that the amputation was unnecessary or could have been avoided, but because his wife, the present plaintiff, found that the problems of looking after him were becoming insurmountable for her, and they wondered about financial help. Put another way, if it was appropriate for him to question Mr Gillespie's treatment then, was it not equally reasonable to do so as soon as he took stock after the amputation in 1982?
79. I agree with Stuart-Smith L.J. that it is relevant to consider the scheme of the Act, taking account both of the postponed start of the limitation period under section 11 and the discretionary power to extend it under section 33. Since there is a wide discretionary power to extend the period in circumstances which Parliament has defined in section 33, there is no clear requirement to construe the knowledge provisions in section 14 narrowly or in favour of individual plaintiffs. I therefore consider that they should be interpreted neutrally so that in respect of constructive knowledge under section 14(3) an objective standard applies.
80. By this standard, it seems to me that it was reasonable for Mr Forbes to obtain a second medical opinion in the circumstances of this case. This is primarily because of the seriousness of the injury and the history of treatment which he had undergone. I doubt, however, whether it is appropriate to regard this issue in terms of a decision made consciously or unconsciously by Mr Forbes, whether to accept his lot or to consider making a claim. If the question is whether, objectively and reasonably, he could be expected to have obtained further advice, then I do not see that his actual mental processes are relevant at all.
81. This leads to the disquiet expressed by my Lords as to the statement in the judgment of this Court in Nash v. Eli Lilly & Co. [1993] 1 W.L.R. 782 at 799H :-"In considering whether or not the inquiry is, or is not, reasonable, the situation, character and intelligence of the plaintiff must be relevant."
82. As to situation, there is no difficulty. The reasonable man must be placed in the situation that the plaintiff was. The references to character and intelligence, however, suggest that regard should be had to personal characteristics of the plaintiff, and this I find difficult to square with the application of an objective and therefore equal standard. Moreover, as Stuart-Smith L.J. points out, the kind of enquiry would become necessary which has to be undertaken in criminal cases where provocation is a possible defence to a charge of murder, and as many authorities indicate this has not proved an easy task.
83. If this qualified-objective approach was held in Nash v. Eli Lilly to be the correct interpretation of the sub-section then of course the decision is binding on us; but I do not read the judgment as going that far. There is only the one-line statement, already quoted, and no indication in the report that this particular nuance of meaning was argued in that appeal. It may also be possible to give the references to character and intelligence a limited meaning, for there could be circumstances where the nature of the alleged negligence was such that those attributes of the "reasonable man" might be relevant in applying the objective test. No such considerations arise in the present case.
84. The Court's statement was repeated and acted upon by the judge in the present case, and he may well have regarded it as qualifying the objective test, thus causing him to take account of the personal characteristics of Mr Forbes, whom he heard and saw in the witness box. It was natural and understandable that he should adopt that approach, but for the reasons given above I would hold that the objective test alone must be applied and that it is necessary for this Court to re-asses this issue.
85. Not without considerable hesitation, therefore, I concur with Stuart-Smith's L.J.'s conclusion that Mr Forbes ought reasonably to have taken further medical advice soon after the amputation, if he ever intended to do so, and that in the circumstances he had constructive knowledge of the relevant facts within section 14(3).

Discretion - section 33

86. Here I agree that the Court's discretion should be exercised afresh and that the plaintiff should not be granted an extension of time under section 33. The principal factor in my judgment is that on the evidence before us the plaintiff's claim seems to have only a very limited, almost negligible chance of success, and this factor does not appear to have been taken into account by the judge. I prefer to express no view of the question whether the judge's exercise of his discretion should be disregarded where it is given as a second reason, and therefore obiter, for the decision he reached.

Lord Justice Roch :

87. I agree with and respectfully adopt Mr Lord, Lord Justice Stuart-Smith's conclusion and reasoning on the first issue raised by this appeal, namely did the deceased himself have knowledge of the facts identified in Section 14(1) more than three years before the commencement of proceedings on the 10 December 1992?
88. I have the misfortune to part company with My Lord's judgment on the second issue, namely whether the deceased's knowledge prior to 10 December 1989 included knowledge that there had been an omission to which the amputation of his leg was attributable because that was knowledge which he might reasonably have been expected to acquire from facts ascertainable by him with the help of medical expert advice which it was reasonable for him to seek.
89. Clearly the knowledge needed to complete knowledge of the kind to start the three year period running could have been provided to the deceased by expert medical advice, because there is no suggestion that there has been a sudden advance in medical knowledge in this field between October 1982 and December 1989. Further, I agree with My Lord, Lord Justice Stuart-Smith, that if it was reasonable for the deceased to seek expert medical advice, then the proviso to Section 14 (3) (b) cannot help the deceased because he took no step to obtain that advice, and therefore could not have been heard to say that he had taken all reasonable steps to obtain and act on expert medical advice.
90. The question that the judge had to answer was "Was it reasonable for him to seek advice from a medical expert prior to the 10 December 1989?" In my opinion the judge asked himself the correct question and the issues in this part of the appeal are:

Did the judge misdirect himself on the law, and, if he did not,

Did he reach a decision that was clearly wrong?

91. With regard to the second issue it has to be recalled that the judge saw and heard the deceased.
92. The judge's directions to himself on the law are to be found at page 12B of the transcript of his judgment.

"As to constructive knowledge, the approach, it is submitted and I agree, is to determine what the plaintiff should have realised or obtained, asking no more of him than is reasonable. That is a standard of reasonableness objective (sic), but must take into account his position, circumstances, character and intelligence. That follows from Nash -v- Eli Lilly.

And so would it have been reasonable to expect the plaintiff to make enquiries before in fact he did? On that issue, the burden is on the defendants to show that he should have done."

93. The judge's directions to himself were based on the decision of this court in Nash v Eli Lilly & Co [1993] 4 All ER 383. At page 399 this court dealt with the question of constructive knowledge saying at letter C:

"On this basis, in our judgment, the proper approach is to determine what this plaintiff should have observed or ascertained, while asking no more of him than is reasonable. The standard of reasonableness in connection with the observations and/or the effort to ascertain are therefore finally objective but must be qualified to take into consideration the position, and circumstances and character of the plaintiff."

94. Then at page 400 F this court concluded this part of its judgment by saying:

"But this is an area (the area of constructive knowledge under Section 14(3)) - in which the onus of proving constructive knowledge is on the defendants."

95. I must confess that I have difficulty with the first of the above passages from the judgment in the Nash -v- Eli Lilly case. If the standard of reasonableness is objective, then the position, circumstances and character of a would-be plaintiff cannot be relevant, although the circumstances in which the would-be plaintiff found himself at the time it is said he should have sought expert advice would be relevant. Nevertheless Nash -v- Eli Lilly is a decision of this court and the judge and we are bound by it. An application of those principles means that the judge who saw and heard the deceased is in a much better position to answer the question which the section poses, namely: "Was it reasonable for the deceased to seek the advice of a medical expert prior to the 10 December 1989?"
96. Were the test to be a wholly objective test, then the conclusion that I would have reached in the present case would have been that it had been reasonable for the deceased to seek advice of a medical expert prior to the 10 December 1989, for the reasons given by My Lord, Lord Justice Stuart-Smith. Because the judge had to take account of the deceased's position, circumstances and character and because the judge saw and heard the deceased, I am not prepared to hold that the judge was clearly wrong in the conclusion that he came to on this issue.
97. In this case, the operations performed by Mr Gillespie were carried out to try to save the deceased's leg which, if the operations were unsuccessful, would inevitably be lost. The deceased had a high opinion of and great trust in Mr Gillespie. We do not have evidence of what the deceased was told by Mr Gillespie and other doctors before, between and after the two operations, but it is reasonable to suppose that he was told that the attempt to restore circulation to the leg might not succeed; that if it did not succeed the leg would have to be amputated if the deceased himself was to survive; and that following the two operations he was told all that could have been done to restore circulation to the leg had been done; that he believed that to be so and there was nothing of which he knew to cast doubt on the proposition that Mr Gillespie and his team and done all that could have humanly been done.
98. The fact that in 1991 the deceased went to solicitors at the insistence of his wife and daughter to enquire whether financial assistance was available to cope with his increasing needs for care does not, in my judgment, provide evidence that it would have been reasonable for the deceased to seek expert medical advice earlier. No doubt expert medical advice was sought at the solicitor's suggestion, and one must be careful not to convert the question posed by Section 14(3)(b) of the Act into a different question - "Should the would-be plaintiff have consulted a solicitor earlier?" In this case, as far as the deceased was concerned, it was not a matter of things going wrong so much as a matter of things not going right.
99. In my view it would be unfortunate if the question asked in Section 14(3)(b) were to be resolved by imputing to a would-be plaintiff an unconscious decision to do nothing and then requiring him to stand by that "decision". Such an approach would encourage those undergoing medical treatment which did not achieve the desired result to go automatically to another specialist for an opinion whether the treatment given could have been more effective.
100. On present authority, in my judgment, the judge was correct in asking himself the question "have the defendants proved that this in this case Mr Forbes should reasonably have sought expert medical advice prior to the 10 December 1989?" This is not a case, in my judgment, where this court can say that the answer given by the judge to that question was clearly wrong. I would dismiss this appeal.