In Wilkins v University Hospital North Midlands NHS Trust, the High Court was called upon to determine the date of knowledge for limitation purposes and whether the court should exercise its discretion to extend time in a claim arising out of treatment in 2009 and 2010, but only issued in 2019.
In early 2007, when he was in his mid-60s, Mr. Wilkins was diagnosed with osteoarthritis in both knees. He was referred to an orthopaedic surgeon, Mr. Shaylor, who carried out a successful right knee replacement in November 2008 before then carrying out a left knee replacement in March 2009.
Unfortunately, Mr. Wilkins continued to suffer pain and swelling in the left knee requiring regular review. In June 2010 he had further revision surgery. In November 2010 he was referred to a second orthopaedic surgeon, Mr. Gregson. In July 2011 Mr. Gregson carried out an arthroscopy and medical meniscectomy. In January 2012 he carried out further revision surgery.
Mr. Wilkins continued to suffer. In June 2012 he instructed solicitors (Harvey Ingram LLP) to investigate a potential clinical negligence claim against the Trust. In March 2013 Mr. Wilkins was provided with a report from an orthopaedic expert on breach of duty and causation. This concluded that the standard of care he had received fell within that which would be regarded as acceptable by a reasonable body of medical opinion. Mr. Wilkins accepted his solicitors’ advice that there were insufficient merits to proceed with a claim.
Unfortunately, his left knee continued to deteriorate. In June 2016 he underwent an above-knee amputation of the leg. In September 2016 he entered into a CFA with a second firm of solicitors (Shoosmiths). In May 2019 a report was received from another orthopaedic expert. This concluded, contrary to the first report, that there had been breaches of duty of care – essentially that Mr. Shaylor and his team had been negligent in not appropriately treating significant infection in 2009 and 2010 – and that the amputation could have been avoided but for these.
Mr. Wilkins issued proceedings in June 2019. The Trust denied liability. It also took the point that the claim was time-barred. The court listed a trial of the preliminary issue of limitation.
The court determined that the claim had not been brought within 3 years of the date of knowledge, but that it would be equitable in all the circumstances to disapply that time limit pursuant to section 33 Limitation Act 1980 and permit the claim to proceed.
As to the date of knowledge, the court considered that this was “straightforward” on the facts. It was not necessary that Mr. Wilkins appreciate the precise mechanism by which he had sustained an injury. It sufficed that there was an understanding “in broad terms” that the medical care might be a possible cause of injury.
In the present case, it was clear that by June 2012 (7 years before issue) Mr. Wilkins was, in broad terms, ascribing his ongoing pain in the knee to the treatment he had received from the Trust. He was sufficiently troubled by his plight that he consulted solicitors. The fact that he obtained legal advice in 2012 did not automatically establish knowledge. But, by this date, he knew the essence of the case. The fact that the orthopaedic expert evidence at that date was negative could not “cancel out” pre-existing knowledge.
As to the extension of time, the “primary factors” were as follows. First, a fair trial remained possible. There was “little concrete prejudice” to the Trust and the trial was “indeed pretty much unimpacted by the passage of time”. Second, the underlying claim was serious. Third, Mr. Wilkins himself could not be deemed culpable for the majority of the delay. This was largely attributable to Mr. Wilkins’ ill-health, his acceptance of the negative advice given to him in 2013, and delay on the part of solicitors. He was not blamed for any of these. Accordingly, his claim was allowed to proceed.
Daniel Clarke, a barrister in Outer Temple’s clinical negligence team, comments on the case as follows:
The case illustrates the relatively low threshold for knowledge in this context. An understanding, even in broad terms, that medical care might be a possible cause of injury suffices. Once acquired, knowledge cannot be unacquired, even if the claim undergoes a “false start” in the sense that a claimant receives legal or medical expert advice that injury was probably not caused by negligent medical care.
It also re-emphasises the importance, from a defendant’s perspective, of identifying specific prejudice, or impediment to a fair trial, caused by delay, if this is sought to be relied on. While the defendant was able to say in Wilkins that the passage of time can always be expected to cause “general prejudice”, the court commented that in the “absence [of] any evidence at all of how such general prejudice transmutes into actual prejudice to the operation of a fair trial in this particular claim, the forensic value of the submission is very limited indeed” (para 83).
Although this point was not entirely determinative, as the court made clear – culpability for the delay was also relevant – this was a major factor in the court’s decision. In fact, the only discrete ground of prejudice relied on by the Trust was that, had the claim been brought before 2013, Mr. Wilkins would not have been able to rely on QOCS. The court rejected the argument that this constituted prejudice to the Trust, both in practice and as a matter of principle.
