Momin Lok v. Hospital Authority

HCPI 981/2014

[2020] HKCFI 1052

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 981 OF 2014

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Before:  The Honourable Mr Justice Bharwaney in Court

Dates of Hearing:  17-18 May 2018 and 26 September 2019

Dates of Closing and Reply Submissions: 11, 17 October and 1 November 2019

Date of Judgment:  4 June 2020

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J U D G M E N T

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1.By this action, issued on 26 September 2014, the plaintiff claims damages in negligence for loss and damage arising from a stroke that she suffered on 5 December 2008. The primary limitation period, under s.27(3) and (4)(a) of the Limitation Ordinance, Cap. 347, (“LO”), of 3 years from the date of the stroke[1], expired on 4 December 2011. This is the trial of 2 preliminary issues[2]:

(a)  has the limitation period of the plaintiff’s claim expired under LO: specifically, what was the date of the plaintiff’s knowledge[3] under s.27(4)(b) of LO; and

(b)  if so, should the court exercise its discretion to disapply the limitation period under s.30 of LO after having regard to all the circumstances of the case and, in particular, to those listed under s.30(3)?

The writ was issued on 26 September 2014.  By s.27(3) and (4)(b) of LO, this action was statute-barred if the plaintiff had the requisite knowledge, as defined in ss.27(6), (7) and (8), more than 3 years prior thereto, i.e. before 26 September 2011.  If so, she would need to persuade the court that, having regard all the circumstances of the case and, in particular, to those listed under s.30(3) of LO, it would be equitable to disapply that time limit.

2.I heard evidence from the plaintiff[4] and from Mr Lok Sun Ming Samsen[5] (“Mr Lok”), her former husband[6], at the trial of the preliminary issues that took place on 17 and 18 May 2018 and 26 September 2019. The reason for the delay in concluding the proceedings was my dissatisfaction with the evidence adduced by the plaintiff in May 2018.  I observed that the plaintiff had adduced little evidence to show why her 1^st application for legal aid was refused on 17 June 2011 and why her 2^nd application for legal aid was granted on 25 July 2014, and, further, that the sparseness of the plaintiff’s evidence would handicap my exercise of discretion to disapply the 3-year limitation period under section 30 of LO, particularly the sparseness of evidence on the matters set out in section 30(3)(a), (e) and (f), namely:

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

…

(e) the extent to which the plaintiff acted promptly and reasonably once he knew whether or not the act or omission of the defendant, to which the injury was attributable, might be capable at that time of giving rise to an action for damages;

(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.”

3.For this reason, I granted leave to the plaintiff on 18 May 2018 to adduce additional evidence, if she wished to do so, on the facts and matters pertaining to 3 specific areas:

(a)  facts and matters pertaining to the refusal of the plaintiff’s first legal aid application on 17 June 2011;

(b)  facts and matters pertaining to the grant of the plaintiff’s second legal aid application on 25 July 2014; and

(c)  events which took place between those 2 dates, with particular reference to the conduct of Messrs Ho Tse Wai & Partners (“HTW”) (her former solicitors).

4.In the result, the plaintiff availed herself of the opportunity to adduce additional evidence which was adduced in the form of the 2^nd affidavit of her assigned solicitor, Mr Nicholas Millar, sworn on 7 June 2018. His assertion of privilege over the additional evidence disclosed and the defendant’s application for further discovery resulted in my further rulings on these matters.  On 13 December 2018, I ordered the plaintiff to disclose further documents by list and, on 19 February 2019,  I ruled on the claim for privilege.  On 11 June 2019, I granted leave to the defendant to further cross examine the plaintiff and Mr Lok at the resumed hearing. The trial of the preliminary issues was resumed and concluded on 26 September 2019. 

Right Brachial Artery Occlusion

5.The plaintiff was born in South Africa on 5 April 1973.  She is of Indian descent.  In 1992, at the age of 19, she married Mr Lok in South Africa.  As he was a Hong Kong resident, they moved to live in Hong Kong at the end of 1992.  After moving to Hong Kong, she worked as a kindergarten teacher and a yoga teacher.  She gave birth to 3 daughters[7]. Afterwards, she began taking a combined oral contraceptive pill called Nordette on a regular basis.  By July 2008, she had been on Nordette for 9 years. A side effect of Nordette is that it increases the risk of thromboembolism in the arterial and venous system[8]. Venous thromboembolism is a condition in which blood clots are formed in the deep veins, travel in the blood stream, and cause blood vessel obstruction in other parts of the body.

6.In mid-2008, the plaintiff experienced a feeling of coldness in her right arm and hand.  She consulted a general practitioner who diagnosed carpel tunnel syndrome.  She then departed for India, as planned, to undertake an advanced yoga course.  Shortly after arriving in India, she had pain, numbness, and coldness in her right arm and hand.  She attended a local hospital and, after various tests, she was informed that she had a thrombus (a blood clot in a blood vessel) in her right arm.  She was advised to return to Hong Kong immediately for an operation.  Following that advice, she returned to Hong Kong on 16 July 2008.  She was taken to Princess Margaret Hospital (‘PMH’) by ambulance from the airport[9].

7.At PMH, she presented with right hand acute pain, numbness and coldness, with absence of pulse in her right brachial artery (the chief artery in the upper arm) and right radial artery (the chief artery in the forearm).  CT angiogram of her right upper limb showed right brachial artery occlusion (blockage).  Emergency right brachial artery embolectomy (surgical removal of the blood clot) was performed on the same day[10].

Anticoagulant Therapy & Discovery of Forearm Artery Occlusion

8.Her treating doctors at PMH had started anticoagulant therapy before the operation, with a continuous intravenous infusion of a blood thinning drug, heparin, which was continued after the operation.  On the next day, 17 July 2008, the plaintiff was started on an oral anticoagulant, warfarin, with a view to long term anticoagulation.  On 18 July 2008, a routine ultrasound scan of the plaintiff’s right arm showed reduced flow in her forearm arteries, and an angiogram revealed occlusion of her forearm arteries (the radial and ulna arteries). Warfarin was then stopped and she was put back on heparin.  Her treating doctor, Dr Chan Kwong Man (‘Dr Chan’), decided to manage her conservatively for a few days.  He found that collateral arteries had developed around her right elbow to feed her right hand, and that she appeared to be asymptomatic with a warm hand.  As her right arm had remained stable and pulse was detectable, Dr Chan decided on 21 July 2008 not to operate on her forearm and warfarin was resumed[11].

Discovery of PFO and Long Term Warfarin Anticoagulation

9.Various tests were conducted on 21 and 22 July 2008 to investigate the cause of the thrombosis in her right arm, including 2 echocardiograms. A trans-thoracic echocardiogram (‘TTE’) was conducted on 21 July 2008, which showed rapid appearance of bubbles in the left atrium after an injection of agitated saline into a peripheral vein.  A trans-esophageal echocardiogram (‘TEE’) was conducted on 22 July 2008, which showed the same result as the TTE.  Based on the results of these 2  echocardiograms, a finding of patent foramen ovale (‘PFO’) was made[12]. A PFO is a hole in the heart that does not close the way it should after birth.  During fetal development, a small flap-like opening (the foramen ovale) is present in the wall between the right and left upper chambers of the heart (the atria).  It normally closes during infancy, but when it does not, it becomes a patent foramen ovale.

10.After the PFO finding, on 25 July 2008, the plaintiff was transferred to the care of Dr Choy Chi Chung (‘Dr Choy’) of PMH.  Dr Choy was then an associate consultant in the Department of Medicine and Geriatrics of PMH.  The purpose of the transfer was to enable Dr Choy to supervise the plaintiff’s anticoagulation with warfarin on a long term basis. She continued to take warfarin as prescribed by Dr Choy from 6 August 2008, when she was discharged home from PMH, up until the time she suffered a stroke on 5 December 2008[13].

Another Right Brachial Artery Occlusion

11.Although she was receiving anticoagulation therapy under the supervision of Dr Choy, the symptoms of pain, numbness, and coldness in her right arm and hand recurred and was reported to Dr Chan at a follow-up on 3 October 2008.  An angiogram taken on 13 October 2008 revealed obstruction of her right brachial artery, and she was immediately re-admitted to PMH.  After admission, another angiogram was taken of her right upper limb, which confirmed right brachial artery occlusion.   Warfarin was then suspended pending a proposed open surgery exploration.  However, the surgery was not carried out because the symptoms resolved spontaneously, and warfarin was resumed on 31 October 2008[14].

The Stroke

12.On 5 December 2008, whilst walking from home to a nearby MTR station on her way to work, the plaintiff suddenly felt very sick.  Two passers-by helped her reach the MTR station, from where she was taken to Tuen Mun Hospital (‘TMH’) by ambulance.

13.She was diagnosed to have suffered an ischaemic stroke (a stroke caused by blockage or obstruction of arteries in the brain), leading to permanent brain damage in her right cerebral hemisphere, resulting in left hemiplegia, with left side motor limb weakness, left facial weakness and slurred speech.  An MRI on 6 December 2008 revealed thrombosis of right internal carotid artery (“ICA”), and middle cerebral artery (“MCA”) with acute infarct (permanent tissue damage due to interruption of blood supply) over the right basal ganglia, the right corona radiate, and the medial right temporal lobe.  A cerebral angiogram on 9 December 2009 showed complete occlusion of a number of arteries in her right cerebral hemisphere, namely, the ICA, the MCA, and the anterior cerebral artery (“ACA”). After hospitalization for one month and 10 days at TMH, the plaintiff was discharged home on 14 January 2009[15].

14.She was aged 35 at the time of the stroke.

Events After the Stroke

15.After the stroke she became dependent on her husband. She could walk with a stick, with difficulty, and required help.  She had to be looked after by Mr Lok, who assisted her in her activities of daily living[16]. She and her family lived on social welfare as she could not work and her husband also lost his job[17].

16.The plaintiff believed that her stroke was caused by the prescription of warfarin rather than heparin[18].  She and Mr Lok consulted a firm of solicitors, Messrs Lee & So, in about August 2010, who advised her that “she may have a case”[19], and who forwarded an application for legal aid on her behalf to pursue a claim for damages for medical negligence.  Apart from obtaining medical records and reports from both PMH and TMH, the Director of Legal Aid (‘DLA’) also obtained 2 expert reports, one from Dr Yu Yuk Ling (a specialist in neurology) and the other from Dr Elaine Chau (a specialist in cardiology) in order to evaluate the plaintiff’s application.

17.In his medical report dated 6 April 2011[20], Dr Yu expressed the view that the plaintiff was properly treated with warfarin given her Nordette taking history, her embolic episode and the finding of PFO, and that her ischaemic stroke could not have been caused by warfarin, which is associated with haemorrhagic strokes, not ischaemic strokes.  If she had not been on warfarin, her stroke would have been more severe.  He concluded that the plaintiff’s surgical management of her right brachial artery thrombosis was of high standard; that thrombectomy was promptly performed on the day of admission; and that the investigation of the underlying cause of the plaintiff’s arterial thrombosis was thorough.  If there was PFO, which should be assessed by a cardiologist, warfarin should be prescribed for prevention of further episodes of arterial thrombosis; if there was no PFO, Nordette might be implicated as a causative or contributory factor and warfarin would still be indicated for about 6 months for prophylaxis against further thrombotic episodes.  The plaintiff’s stroke was due to thrombosis of the right ICA and right MCA and was not a complication of warfarin.

18.In her medical report dated 13 June 2011[21], Dr Chau expressed the view that warfarin was the correct treatment for thrombosis, whether or not there was a PFO, that the prescription of warfarin, which increases the risk of bleeding, did not result in the plaintiff’s ischaemic stroke and, if anything, would only have reduced the severity of the stroke.  Despite anticoagulation, the plaintiff sustained an ischaemic stoke due to thrombosis of the right ICA and right MCA.  Dr Chau noted that, following discharge from hospital, the plaintiff was followed up frequently for monitoring of International Normalised Ratio (“INR”) and adjustment of warfarin dosage according to the plaintiff’s clinical situation.  Such close monitoring of patients on warfarin was the proper standard practice. On a follow-up visit on 28 November 2008, the plaintiff’s INR was 1.3 and, therefore, the dose of warfarin was increased from 6 mg per day to 7 mg per day.  On 4 December 2008, the day before the plaintiff was due for follow-up, the INR was 1.6.  In her opinion, the treatment, diagnosis, and examination given by the doctors at PMH were considered proper and acceptable from a medical point of view.

19.On the basis of these 2 expert reports, DLA refused the plaintiff’s application for legal aid on 17 June 2011[22].

20.Meanwhile, the plaintiff and Mr Lok also learned that Mr Albert Ho, a member of the Legislative Council, ran an advice clinic at a community hall at Tuen Mun. After approaching him sometime in 2011, they were introduced to his solicitors’ firm, which was then known as Messrs Ho, Tse, Wai & Partners (‘HTW’).  Mr John Clancey and Ms Jasmine Chau of HTW became responsible for handling the plaintiff’s case[23].

21.The plaintiff received advice from HTW that “she had a legal case against” the Hospital Authority, as can be seen from her evidence during her cross examination:

“Q. And he gave you legal advice that, given what you’d said, you should bring proceedings against the Hospital Authority? You should issue a writ?

A. That’s when I went to his offices to -- and approached them, yes, that’s exactly what I was told.

Q. He heard your explanation...

A. My story.

Q. ...your story and he said that you should sue the Hospital Authority?

A. He didn’t use the words, ‘You go and sue somebody’.

Q. No.

A. He says, ‘You have a legal case against that, so you can approach this.’ It’s not a matter of sue somebody.”[24]

HTW wrote to DLA on 6 May 2011 that the plaintiff had a possible claim for medical negligence and that it was necessary to obtain an expert report from an experienced vascular surgeon[25]. The advice she received that “she had a legal case against” the Hospital Authority was likely to have been given at about this time.

22.Subsequently, a protective writ was issued in the District Court on 8 July 2011 in DCPI 1373 of 2011 (“the DCPI action”). The plaintiff knew that the primary limitation period[26] was 3 years from the date of the stroke she suffered on 5 December 2008.  In her letter to the clerk of the District Court dated 15 December 2011[27],  which was written with the assistance of HTW, she wrote that the writ was  issued “to protect my interest for initiating legal proceedings against the Defendant within the 3 year limitation period”.

23.On 23 June 2011, the plaintiff filed an appeal against the legal aid refusal.

24.In September 2011, the plaintiff, Mr Lok and their 2 younger daughters all went to South Africa to facilitate the plaintiff’s rehabilitation, as she could be better taken care of by her family members in South Africa[28].

25.An expert opinion was later obtained from a vascular surgeon, Miss Linda Hands, Clinical Reader in Surgery and Honorary Consultant Surgeon[29]. In her report dated 25 October 2011, Miss Hands pointed out that, since the plaintiff’s treating doctors at PMH were of the view that she had a PFO and that her right arm embolus was caused by a paradoxical embolus passing through the PFO, her warfarin therapy was grossly inadequate, “with 1 mg increases in warfarin over one to three week periods and an INR which resolutely failed to rise above a maximum of 1.8 on 3 August 2008”.  Miss Hands was of the opinion that the plaintiff’s right arm arterial thrombosis was caused by her bilateral cervical ribs compressing on her right subclavian artery which supplies blood to the right arm, and appropriate treatment for this would have been to remove the cervical rib, either at the time of the thrombectomy or after a short period of anticoagulation, and to repair the dilated artery.  If she had received the appropriate initial treatment, she would not have required prolonged anticoagulation.  However, Miss Hands was unable to see a link between the right arm arterial thrombosis and the plaintiff’s subsequent stroke.

26.On 29 November 2011, HWT advised the plaintiff by email that Miss Hands referred to several areas of negligence but said there was no connection of the negligence to the causation of the stroke.  Based on a view of another neurologist that her condition “could very well have caused a stroke”, HWT advised the plaintiff to seek an expert report from a neurologist in Hong Kong[30].

27.HTW did not send a copy of Miss Hands’ report to DLA for their consideration or in support of the plaintiff’s legal aid appeal.

28.As Mr Lok could not obtain employment in South Africa, he returned to Hong Kong in about early 2012, so that he could obtain work here and help to support the plaintiff and their daughters[31].

29.In May 2012, HTW instructed Dr Huang Chen Ya, a neurologist, to advise further on the plaintiff’s case.  Dr  Huang advised by telephone on 7 May 2012 that the plaintiff did not have a case for the stroke and that it was difficult to make a good case[32].  After receipt of Dr Huang’s first oral advice in May 2012,  HTW wrote to Dr Huang on 17 May 2012[33]:

“…

We apologise for troubling you again, but our client is of the view that there is still a possibility that the negligence of the treating doctors had caused damage to her.

… We write to ask whether given the problem with our client’s arm, … the fact that our client was still taking warfarin had caused her to suffer from a stroke[?]

… If you are of the view that prescribing warfarin to Mrs Lok was below the expected standard and caused a stroke, we will formally instruct you [to] prepare an expert report on liability and causation.”

On 8 June 2012, Dr Huang again advised orally that one could not prescribe heparin for a long time and if heparin was stopped, one would need to prescribe warfarin, that there was no evidence the arm problem caused the stroke and that there was no real chance of succeeding[34].

30.Thereafter, HTW asked the plaintiff to seek expert medical opinion from doctors in South Africa in support of her claim.  She did try but she was not successful[35].

31.After 2 extensions of the validity of the writ in the DCPI  action up to 6 July 2013, HTW discontinued the action on 10 June 2013[36].  It is the plaintiff’s evidence that the discontinuance was done without her knowledge and consent[37].  Mr Lok’s evidence is that he signed the plaintiff’s name on the written instruction for discontinuance[38], without informing the plaintiff, because Mr Clancey told him that the case could not go ahead as there was not enough evidence to support her claim[39]. In her 1^st affirmation, the plaintiff stated that “I did not sign any authority for them to discontinue.  I relied on my then husband.”[40]  I infer from this statement that she had authorised Mr Lok to deal with HWT in connection with the DCPI action.  I find that Mr Lok’s authority to deal with HWT in connection with the DCPI action included the authority to sign on her behalf to discontinue the DCPI action.  I also find that the plaintiff is imputed with the knowledge of such discontinuance[41]. By the same token, Mr Lok’s knowledge that the case could not go ahead as “there was not enough evidence to support the claim” was also imputed to the plaintiff.

32.The legal aid appeal was not proceeded with.  DLA contacted HTW on 6 September 2013 and were informed that they no longer acted for the plaintiff.  After the DLA’s attempts to contact the plaintiff were unsuccessful, the legal aid file was closed in October 2013. On 13 February 2014, the plaintiff made her second legal aid application, which was supported by Miss Hands’ expert report dated 25 October 2011.  Based on that report, and notwithstanding that Miss Hands could not demonstrate a causal link between the negligence and the stroke, legal aid was granted to the plaintiff to pursue the claim on 25 July 2014[42].

33.The writ and indorsement of claim in the present action was issued on 26 September 2014. The defendant was served on 17 September 2015.

Expert Opinion of Drs Caplin, Pretorius and Professor Machin

34.At the trial of the preliminary issues, expert opinion was adduced by the plaintiff from Dr John Caplin (consultant cardiologist)[43], Dr Pieter Pretorius (consultant neuroradiologist)[44] and Professor Samuel Machin (consultant haematologist)[45] to the effect that the stroke was caused by the failure of her treating doctors at PMH to prescribe a sufficient dose of anticoagulant from 6 August 2008 to 5 December 2008 so as to maintain a therapeutic INR level of between 2.0 to 3.0 in her blood.

35.The defendant did not adduce any expert evidence at the trial of the preliminary issues.

Issue No. 1: what is the date of the plaintiff’s knowledge?

36.Knowledge is defined in ss.27(6), (7) and (8) of LO.  The relevant provisions are as follows:

“27(6) In this section, and in section 28, 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 that 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

(c) the identity of the defendant; and

(d) ...

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.

(7) For the purposes of this section an injury is significant if the plaintiff 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.

(8) For the purposes of this section and section 28 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.”

37.On the pleadings, time started to run in this case either:

(a)  on 5 December 2008 (the date of the stroke); or

(b)  on 25 October 2011 (the date of the expert report of Miss Hands); or

(c)  on 22 January 2016 (the date of the first expert report of Dr Caplin); or

(d)  sometime between 5 December 2008 and 25 September 2011.

38.As the writ in this action was issued on 26 September 2014, this action would have been commenced within the 3-year limitation period, and is not statute-barred if the plaintiff acquired the requisite knowledge either on 25 October 2011 or 22 January 2016.

39.The question for my adjudication is whether time had started to run sometime between 5 December 2008 and 25 September 2011.  If not, this action is not statute-barred. Did the plaintiff have knowledge, sometime between 5 December 2008 and 25 September 2011, that her stroke was attributable in whole or in part to the act or omission of the defendant, their servants or agents, which is alleged to constitute negligence?

40.It is the defendant’s case that the court should:

(a)  find that the date of the plaintiff’s knowledge, in accordance with s.27(6), was August 2010, when she consulted Messrs Lee & So, solicitors. By then, she already knew enough to have begun “to investigate whether or not she had a case against the defendant”[46]; or

(b)  find that she had more than the requisite knowledge on 6 May 2011, when HTW wrote on her behalf to Legal Aid, “in regard to her possible claim for medical negligence”; or

(c)  find that she had more than the requisite knowledge on 8 July 2011 when she issued her District Court writ on the advice of HTW;

(d)  and reject the plaintiff’s submission that knowledge only runs from 25 October 2011 (the date of the expert report of Miss Hands) or from 22 January 2016 (the date of the first expert report of Dr Caplin), as being wrong in law.

Discussion

41.The primary limitation period under s27(3) and (4) of LO is 3 years from the date on which the cause of action accrued.  In tort, the cause of action accrues when damage, which is more than minimal, occurs even if the injured person did not know that he had suffered it and could not reasonably have been aware that he had suffered it.  The date of accrual of the cause of action may be years before a plaintiff is able to establish a causal connection with the symptoms and the alleged wrongdoer. The problem is particularly acute in medical negligence cases where the plaintiff lacks medical knowledge to attribute his medical condition to some act or omission of a medical practitioner.  The reforms to LO were designed to deal, predominantly, with cases of imperceptible injury and concealed causation which gave rise to manifest injustice by becoming statute-barred even before a plaintiff knew that he had an injury or before he knew who was responsible for causing it. S27(6), (7) and (8) of LO, which are modelled on s14 of the English Limitation Act, are the product of these reforms.

42.It is common ground that, on 5 December 2008, the date that she suffered a stroke, the plaintiff had knowledge that she had suffered a significant injury in the sense that she would reasonably have considered it sufficiently serious to justify her instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment. It is also common ground that the plaintiff had knowledge, on 5 December 2008, that the defendant was the Hospital Authority.  For time to run in the present case, the plaintiff must also have knowledge that the injury was attributable in whole or in part to the act or omission which is alleged to constitute negligence.

43.Under s27 of LO, knowledge can be actual or constructive.  The latter includes knowledge which the plaintiff might reasonably have been expected to acquire from facts ascertainable by her with the help of medical or other appropriate expert advice which it is reasonable for her to seek.  However, a person shall not be fixed with knowledge of a fact ascertainable only with the help of expert advice so long as he or she has taken all reasonable steps to obtain (and, where appropriate, to act on) that advice.

44.No point is being taken against the plaintiff that she had constructive knowledge, sometime between 5 December 2008 and 25 September 2011, that her stroke was attributable in whole or in part to the act or omission of the defendant, their servants or agents, which is alleged to constitute negligence. She only had knowledge of the opinions of Miss Hands and Dr Caplin from 25 October 2011 (being the date of the expert report of Miss Hands) and from 22 January 2016 (being the date of the first expert report of Dr Caplin).

45.Did she have actual knowledge, sometime between 5 December 2008 and 25 September 2011, that her stroke was attributable in whole or in part to the act or omission of the defendant, their servants or agents, which is alleged to constitute negligence?

46.It is instructive to refer to English authorities on s14 of the Limitation Act on which our provisions in LO are based.

47.Actual knowledge has been defined by the courts to mean a reasonably firmly held belief sufficient to warrant the taking of preliminary steps to the issuing of proceedings, such as submitting a claim to the defendant, taking legal advice and collecting evidence: Nash & ors v Eli Lilly & Co & ors [1993] 1 WLR 782;  Sprago v North Essex District Health Authority [1997]  PIQR P235;  Haward v Fawcetts [2006]  1 WLR 682 and by the majority in the Supreme Court in AB v. Ministry of Defence [2013]  1 AC 78.  In the latter case, the Supreme Court had to consider whether knowledge, for the purposes of the section, had to be founded on strongly objectively justified belief, or whether it was sufficient that the claimant did in fact believe that his injury was attributable to the alleged act or omission. The Supreme Court, by a majority of 4 (Lord Walker, Lord Brown, Lord Mance and Lord Wilson) to 3 (Lord Phillips, Baroness Hale, and Lord Kerr), held that reasonable belief in what is attributable is sufficient to set the time running.  The majority were of the view that it is necessary, as a matter of policy, to hold that time begins to run once the claimant has a belief, justified by at least some degree of evidence, that his injury is attributable to the defendant’s act or omission.  The minority were of the view that knowledge must be based on clear and objectively justified evidence.[47]

48.Brooke LJ’s statement in Sprago v North Essex District Health Authority [1997]  PIQR P235 at P242 has become the authoritative statement of the principles that apply on the issue of actual knowledge:

“(1) The knowledge required to satisfy [s.27(6) of LO] is a broad knowledge of the essence of the causally relevant act or omission to which the injury is attributable;

(2) “Attributable” in this context means “capable of being attributed to”, in the sense of being a real possibility;

(3) A plaintiff has the requisite knowledge when she knows enough to make it reasonable for her to begin to investigate whether or not she has a case against the defendant. Another way of putting this is to say that she will have such knowledge if she so firmly believes that her condition is capable of being attributed to an act or omission which she can identify (in broad terms) that she goes to a solicitor to seek advice about making a claim for compensation;

(4) on the other hand, she will not have the requisite knowledge if she thinks she knows the acts or omissions she should investigate but in fact is barking up the wrong tree; or if her knowledge of what the defendant did or did not do is so vague or general that she cannot fairly be expected to know what she should investigate; or if her state of mind is such that she thinks her condition is capable of being attributed to the act or omission alleged to constitute negligence, but she is not sure about this, and would need to check with an expert before she could be properly said to know that it was.”   [my emphasis]

49.The facts of the present case throw up a conflict between the third and fourth principles quoted above. Is the certainty of the plaintiff’s belief that her stroke was caused by the prescription of warfarin rather than heparin[48] sufficient to start the running of time in the present case; or does the presence of contrary expert opinion suspend time from running until expert confirmation is received that a causal connection between the stroke and the act or omission said to constitute negligence is established?

50.What distinguishes the present case from many other cases where the question of knowledge has arisen is the fact that the plaintiff received opinion from three experts categorically denying that the plaintiff had a case against the defendant.

51.On 6 April 2011, Dr Yu expressed the view that the plaintiff was properly treated with warfarin and that her ischaemic stroke could not have been caused by warfarin, which is associated with haemorrhagic strokes, not ischaemic strokes.  If she had not been on warfarin, her stroke would have been more severe.  He concluded that the plaintiff’s surgical management of her right brachial artery thrombosis was of high standard; that thrombectomy was promptly performed on the day of admission; and that the investigation of the underlying cause of the plaintiff’s arterial thrombosis was thorough.  The plaintiff’s stroke was due to thrombosis of the right ICA and right MCA and was not a complication of warfarin[49].

52.On 13 June 2011, Dr Chau expressed the view that warfarin was the correct treatment for thrombosis, that the prescription of warfarin, which increases the risk of bleeding, did not result in the plaintiff’s ischaemic stroke and, if anything, would only have reduced the severity of the stroke.  Despite anticoagulation, the plaintiff sustained an ischaemic stoke due to thrombosis of the right ICA and right MCA.  Dr Chau noted that, following discharge from hospital, the plaintiff was followed up frequently for monitoring of INR and adjustment of warfarin dosage according to the plaintiff’s clinical situation.  Such close monitoring of patients on warfarin was the proper standard practice.  On a follow-up visit on 28 November 2008, the plaintiff’s INR was 1.3 and, therefore, the dose of warfarin was increased from 6 mg per day to 7 mg per day. On 4 December 2008, the day before the plaintiff was due for follow-up, the INR was 1.6.  In her opinion, the treatment, diagnosis, and examination given by the doctors at PMH were considered proper and acceptable from a medical point of view[50].

53.In May and June 2012,  Dr Huang advised that that one could not prescribe heparin for a long time and, if heparin was stopped, one would need to prescribe warfarin, that there was no evidence the arm problem caused the stroke and that there was no real chance of succeeding[51].

54.Given these expert opinions, the plaintiff’s strong belief that her treatment by warfarin, instead of heparin, caused the stroke was unsupported and unreasonable. The subsequent medical advice she received was that her treatment by warfarin was proper: the act or omission that contributed to the stroke was that she was not given enough of it[52]. This was the exact opposite of her unsupported belief.

55.In Broadley v Guy Clapham & Co [1994] 4 All ER 439, the Court of Appeal reconfirmed that knowledge of attrition, even in clinical negligence cases, need only be in relatively broad or general terms.  They held that Bentley v Bristol & Western Hospital Authority [1991] 2 Med LR 359 was wrongly decided. In that case, the plaintiffs sciatic nerve was damage in a hip replacement operation.  The trial judge held that time would run only from when the plaintiff knew that there had been a failure to carry out the operation safely and, specifically, that injury might be due to excessive traction of the nerve.  The Court of Appeal held that knowledge of such detail was not required: the broad knowledge that the plaintiff needed to acquire, which she had, was that injury had been caused by damage to the nerve resulting in something which the treating surgeon had done or not done in the course of the operation.

56.In his judgment in Broadley v Guy Clapham & Co, Hoffmann LJ, as he then was, used a colloquial expression, “barking up the wrong tree”, which has been repeated many times afterwards.  He said at p.449:

“Ordinarily it will suffice that he knows that the injury was caused by an act or omission of the defendant. But there may be cases in which his knowledge of what the defendant did or did not do is so vague and general that he cannot fairly be expected to know what he should investigate. He will also not have reached the starting point if, in an unusual case like Driscoll-Varley v Parkside Health Authority, he thinks he knows the acts and omissions he should investigate but in fact he is barking up the wrong tree.”

57.Driscoll-Varley v Parkside Health Authority [1991] 2  Med LR 346 was a case in which the plaintiff thought that an injury to her leg had been caused by a surgeon's negligence, but later discovered that the real cause was not the operation but the removal of the leg from traction during subsequent treatment.  Lord Walker in AB v. Ministry of Defence [2013] 1 AC 78 at §38 commented that:

“It seems a rather marginal example of barking up the wrong tree, since the plaintiff's misapprehension was in relation to the causative event in a single course of treatment, although the real complaint was about the after-care rather than the operation itself.”

58.The facts of Ogunsanya v Lambert Health Authority 3 July 1985, Bristow J, unreported[53] bear some similarity to the present case.  In that case the plaintiff was rendered paraplegic following a gallstone operation which resulted in extensive internal bleeding. The cause of the paraplegia was thought to be attributable to a low dose of subcutaneous heparin which caused the bleeding.  It was not until a medical report from a neurologist was received, indicating that the paraplegia was due to a delay in treating the bleeding, that attribution was established.

59.In Khan v Ainslie [1993] 4 Med LR 319, the plaintiff’s blindness was thought by him to have been caused when his medical practitioner administered eye drops which caused him pain.  Nearly 6 years later, he finally received the medical opinion indicating that the cause of his blindness was in fact delay in treating his condition of glaucoma.  The receipt of this report was held to be the date of attribution and the plaintiff’s date of knowledge.

60.In Forbes v Wandsworth Health Authority [1997] QB 402, the Court of Appeal confirmed that, in clinical negligence cases, there must be knowledge of some causative link between the treatment, or lack of it, and the plaintiff’s condition.  He had a bypass operation in 1982.  The operation failed and a second operation was carried out the next day.  That operation was unsuccessful and the plaintiff was told that he needed to have his leg amputated to prevent gangrene and this was done in November 1982.  10 years later, in 1992, the plaintiff received medical advice that the amputation was due to a failure to perform the second bypass earlier.  The majority of the Court of Appeal held that the judge was right to find that, until the plaintiff was so told by an expert, he did not know, as a matter of science, that there was an opportunity to prevent the amputation.

61.However, the Court of Appeal came to a different view in Sniezek v. Bundy (Letchworth) Ltd [2000] PIQR P213.  In that case, the claimant experienced a sensation of burning on his lips and throat and formed the firm view that this was the result of exposure to polymer at his workplace, a view that he never abandoned.  He stopped work because of this in 1988 and sought legal and medical advice.  He was seen by a number of experts, all of whom could find nothing wrong with him.  One indeed concluded that his symptoms were psychosomatic.  Ultimately, in 1994 a senior ENT Registrar advised that his symptoms might well be attributable to exposure to polymer.  The trial judge took that as the date on which he acquired knowledge for the purpose of s14 of the Limitation Act.  The Court of Appeal did not agree, holding that the claimant’s firm belief, in the face of expert advice to the contrary, constituted knowledge for the purpose of s14[54] . The Court of Appeal held that it was necessary to distinguish between a claimant who has a firm belief that he has a significant injury, attributable to his working conditions, especially one which takes him to a solicitor for advice about a claim, a belief which he retains whatever contrary advice he receives, and a claimant who believes that he may have, or even probably has, a significant injury which is attributable to his working conditions, but is not sure and feels it necessary to have expert advice on those questions.  The former has knowledge of significant injury and attribution for the purposes of section 14; the latter does not.  The claimant fell into the former category.  The fact that the claimant recognised the need to get both medical and legal advice, and that the advice was adverse until January 1994, did not take him out of the former category and postpone the date of knowledge.

62.I would reconcile the judgment of the Court of Appeal in Sniezek v. Bundy (Letchworth) Ltd and the majority judgments of the Supreme Court in AB v. Ministry of Defence on this basis.  The firm belief that the claimant had, that his injury was the result of exposure to polymer in the workplace, although contradicted by contrary medical opinion, was, nevertheless, reasonably held as it was vindicated by the later opinion of the senior ENT Registrar that his symptoms might well be attributable to exposure to polymer.  In the present case, as I have stated in §54 above, the plaintiff’s strong belief that her treatment by warfarin, instead of heparin, caused the stroke was, and remained, unsupported and unreasonable.  The subsequent medical advice she received was that her treatment by warfarin was proper: the act or omission that contributed to the stroke was that she was not given enough of it.  This was the exact opposite of her unsupported belief.

63.Having reviewed the above authorities, and applying the majority decision of the Supreme Court in AB v. Ministry of Defence that that time begins to run once the plaintiff has a belief,  justified by at least some degree of evidence, that his or her injury is attributable to the defendant’s act or omission complained of,  I find that the plaintiff in this case did not have the requisite knowledge, sometime between 5 December 2008 and 25 September 2011, that her stroke was attributable in whole or in part to the act or omission of the defendant, its servants or agents, which is alleged to constitute negligence.

64.Accordingly, I find that this action, commenced on 26 September 2014, was not time-barred.

Application to override the time limit under s30 of LO

65.If I had concluded that this action was time-barred in that the plaintiff’s belief, which she held shortly after she suffered a stroke, that her treatment by warfarin, instead of heparin, caused the stroke, was sufficient for time to begin to run under LO,  I would have exercised my discretion under s30 of LO to override the time limit. I would have done so on the ground that the plaintiff had acted promptly and had made reasonable efforts to obtain expert medical opinion to support her claim; that the delay was caused by the negative medical opinion she had received; that the plaintiff’s claim did not appear to be weak or of little value; and that the defendant has not demonstrated that it has suffered prejudice from this delay. Specifically, the defendant had received notification of the plaintiff’s claim by DLA’s letters to PMH dated 14 September 2010 and TMH dated 5 November 2010, less than two years after the stroke on 5 December 2008, which would have enabled the defendant to gather and assemble, in good time, all relevant clinical notes and records, test results, scans and reports to enable it to study, investigate and, if so advised, to resist, the plaintiff’s claim.

Costs

66.I direct the parties to exchange written submissions[55] on the issue of costs, including any outstanding and reserved costs, within 21 days from today; and that they exchange written submissions in reply[56] within 14 days thereafter.  I will then make my ruling as to costs in this matter.

Mr Ronald Tang, instructed by Littlewoods, assigned by Director of Legal Aid, for the plaintiff

Mr Nigel Kat SC, instructed by Deacons, for the defendant