AZAM -v- UNIVERSITY HOSPITAL BIRMINGHAM NHS FOUNDATION: THE JUDGMENT AT FIRST INSTANCE: THE DATE OF KNOWLEDGE IN A CLINICAL NEGLIGENCE CASE

Last week I wrote about the defendant’s unsuccessful appeal in Azam v University Hospital Birmingham NHS Foundation Trust [2020] EWHC 3384 (QB).  I have been sent a copy of the initial judgment of HHJ Rawlings (2nd September 2019), by barrister John Coughlan.  This judgment makes interesting reading, particularly on the date of knowledge. Azam-Approved Judgment – 2 September 2019 (1)

THE CASE

The claimant underwent a chest operation in 1996, he was left with scarring.  He saw a doctor for a second opinion in 2014 after his son had seen the scars on his chest.  The treating doctor did not express a view in relation to the original surgery but the claimant was concerned enough to instruct solicitors and obtain a medical report in 2016. That medical report indicated that there had been negligence.

THE TRIAL ON THE PRELIMINARY ISSUE OF LIMITATION

The judge was hearing a preliminary trial on the issue of limitation.

The claimant says that his date of knowledge was 12 August 2014 when Mr Carner advised him that he could go through an operation to improve the appearance of his chest, or alternatively the date on which Mr Goodacre advised that the operation had originally been carried out negligently. The defendant says that the claimant knew immediately after the operation had been performed that he had suffered a significant injury as a result of the operation when he raised concerns with Dr Beattie on 6 February 1998 and asked about the possibility of having the operation re-done. I accept the submission of Mr Coughlan for the defendant that knowledge that the injury in question was significant does not also require there to be knowledge that the injury was caused by a negligent act. That is what section 14 says.
10. Mr Uddin says, however, that I should not regard the claimant as having suffered an injury for the purposes of section 14(1) until Mr Azam became aware that the result of his operation in March 1996 was worse than he could reasonably have expected it to be. Mr Uddin’s point is superficially attractive. Why should time run against the claimant who has no reason to believe the disfigurement he suffered as a result of the operation was any different than he could reasonably expect as a result of that operation. However, if section 14(1) does not operate until Mr Azam knew that the outcome of the operation was worse than he could reasonably have expected it to be, that necessarily requires that he have knowledge that the operation was carried out negligently and section 14(1) does not require that he has that knowledge.
11. As for knowledge of the identity of the defendant. It is clear that the claimant Mr Azam knew that Mr Campbell had carried out the operation, and that it was the defendant who was responsible for Mr Campbell’s actions, and indeed he wrote to them as an initial step towards pursuing his claim.
12. For those reasons, I have come to the conclusion that the primary limitation period expired in March 1999, three years after the operation was carried out, because Mr Azam had the necessary knowledge as defined by section 14 of the Limitation Act 1980 almost immediately after the operation had been carried out that he had suffered a significant injury, albeit I accept he did not necessarily know at that stage that the result of the operation was anything other than he might expect it to be (ie he did not know that he had suffered the injury because Mr Campbell had (on his case) carried out the operation negligently).

THE TRIAL JUDGE’S REJECTION OF THE CLAIMANT’S ARGUMENT UNDER SECTION 32 OF THE LIMITATION ACT AND CONCEALMENT

The judge also rejected an argument under Section 32. The claimant arguing that some of the statements made by the medical staff amounted to “concealment” and stopped the limitation period running.

“Mr Azam’s case as pleaded is that Mr Campbell told him that the result of the operation was at least successful or perhaps acceptable. At trial the focus shifted to
what a Dr Wong may have told Mr Azam about the result of the operation, shortly after it took place, either that it had been successful, or alternatively acceptable. I do not consider that that amounts to concealment for the purposes of section 32. Section 32(1)(b) refers to “any fact relevant to the plaintiff’s right of action” being deliberately concealed by the defendant. I do not consider that any view expressed by Dr Wong or by Mr Campbell as to the relative success of the operation amounts to concealment of a fact for the purposes of section 32.”

 

THE CLAIMANT’S (PARTIALLY) SUCCESSFUL APPLICATION UNDER SECTION 33

As we saw in the previous post the claimant was, however, partially successful in obtaining an order under Section 33.  The judge allowed the matter to proceed in relation to the issue of negligence but not the issue of informed consent.  The judge’s decision in relation to Section 33 was upheld on appeal.