Das v Ganju [1999] EWCA Civ 1152 (31 March 1999)

SIR CHRISTOPHER STAUGHTON: Mrs Das, the plaintiff in this action, gave birth to a daughter named Monica on 24th October 1978. The child, as is accepted for present purposes, was born with congenital rubella syndrome, deaf, blind and severely handicapped. During her pregnancy Mrs Das was seen on three occasions by the defendant, Dr Ganju, a general practitioner. The first occasion was on 17th February 1978, when the doctor made the note "plain x-ray abdomen". Nobody can cast very much light on that. Mr Grace, who appears for Dr Ganju, says that it is unlikely that anyone would order an abdomen x-ray on a patient who was known to be pregnant. Secondly, on 28th February, the record in the notes is "urticarial rash on the face". Mrs Das must by then have been pregnant, since her last period ended on 12th January. It is her case that she told the doctor that she was pregnant either on or before 28th February, but that remains to be proved if her action proceeds. Thirdly, Mrs Das was seen again by Dr Ganju on 2nd May. On that occasion the notes recorded both the date of her last menstrual period and that her estimated date of delivery was 19th October 1978.

Mrs Das later commenced proceedings against Dr Ganju for damages for negligence. She complained that, when she was seen on the second occasion in February, the doctor failed to consider whether the rash was not urticarial (which means heat rash or, on one view of the evidence, nettle rash) but rubella; and she should have asked whether Mrs Das thought that she was or might be pregnant, if the doctor did not already know the answer. As to the occasion when the doctor saw Mrs Das in May, it is said that she should have been alerted to the possibility that the rash might have been rubella, and she should have advised Mrs Das to have blood tests as a matter of urgency, or have informed the hospital to which she was referred for antenatal care of the possibility of exposure to rubella. The claim was for damages in respect of caring for Monica "at enormous emotional cost and at enormous cost in terms of time and expense".

The writ in the action brought by Mrs Das was issued on 17th September 1996, which was 18 years after the cause of action arose. It was said on Dr Ganju's behalf that the claim was barred by effluxion of time. There was a preliminary issue ordered to be tried with a view to deciding whether the claim of Mrs Das failed on that ground. The trial of the preliminary issue took place before Mr Justice Garland in London. He held that the claim of Mrs Das was barred by section 11 of the Limitation Act 1980 at the time when the writ was issued, but that the discretion in section 33 to disapply section 11 should be exercised in her favour. Dr Ganju appeals from that decision.

It follows, by virtue of subsections 11(3) and 11(4), that the action could not be brought after the expiration of three years from "the date of knowledge ... of the person injured." The date of knowledge is defined in section 14, but we need not stay to consider that; the parties have reached agreement that the date of knowledge in this case was between 4th June 1987 and 19th October 1988. So a claim by Mrs Das became time-barred, subject always to section 33, on some day between June 1990 and October 1991.

There are in essence three stages in this history. The first began with the three visits to Dr Ganju that I have mentioned. As the judge found, congenital rubella syndrome occurs during the first 10 to 12 weeks of pregnancy. By 2nd May 1978 the damage had been done; the only option then available, if rubella had been confirmed, would have been to advise Mrs Das to have her pregnancy terminated, or to run the risk of having a severely disabled child. Of the 28th February visit to the doctor, the judge said:

"I saw this baby in Dr Chapple's follow-up clinic today. She has gained in weight since her discharge from the ward. The main problems here are that she has bilateral cataracts. She has a loud pansystolic murmur and a splenomegaly. Her head circumference is 36.4 which is below the 3rd percentile, but it corresponds to her weight. Her fontanelles are wide and large and she has got widely separated sutures. She seems to fit a picture of a congenital rubella syndrome."

That letter was addressed to Dr Ganju, but by that date in June 1979 when it was sent, as I understand it, Mrs Das had moved and had been taken on to the list of another general practitioner elsewhere. In May 1980 Monica was included in the National Congenital Rubella Surveillance Programme. It was not until February 1985 that Dr Chapple gave a definitive diagnosis.

Then in 1984 Mrs Das and her husband met a friend with some medical knowledge, and the friend put them in touch with an organisation called AVMA (Action for the Victims of Medical Accidents). They in turn referred her to solicitors, Daniel and Harris, on 4th June 1987. That is the earliest date which has been agreed between the parties for the start of the range of dates of knowledge.

"We act for Protima Rani Das of 9 Corn Croft, Hatfield, Herts who is contemplating a claim against you for damages for personal injuries suffered as a result of negligence in your treatment of her during her pregnancy in 1978 following which her daughter Monica Das was born on the 24th October 1978."

Mr Grace pointed out that it is remarkable that Dr Ganju, who can remember nothing of the incident, perhaps naturally enough, should be able to remember the date when Mrs Das left her practice to within a period of two years. But I do not see that anything turns on that.

There was further correspondence. The Medical Defence Union wrote to Daniel and Harris on 24th September 1987, saying that Dr Ganju was one of their members and asking them to provide any case notes they had obtained from Mrs Das's current general practitioner. The solicitors replied on 28th September, enclosing "a copy of the report and copy page from medical notes from our client's present general practitioner". The Medical Defence Union returned to the matter on 1st October, when they made some observations on the claim and asked for a full set of copies of both the general practice and the hospital records. That letter was never answered, so far as we know, by the solicitors, and this was said to be a matter to be taken into account as a fault in the conduct of the case of Mrs Das.

Then on 27th October 1987 there was an offer of legal aid subject to a lump sum contribution of £1,721 payable immediately. This caused Mrs Das and her husband considerable concern. Her solicitors asked the Law Society for the basis of the assessment. On 11th November the health authority provided the solicitors with copies of the medical records. Mr Grace says that meant the hospital notes. There followed more correspondence between the solicitors, the Law Society and Mrs Das. In a letter of 15th April 1988 the solicitors asked Mrs Das and her husband whether they wished to accept the offer from the Law Society. The solicitors also said:

"In particular there are difficulties because your claim relates to wrongful life. We are not saying that the negligence caused Monica's disabilities, but merely that she would not have been born at all if you had known that she would be so severely handicapped. No claim of this sort has yet been successful in the United Kingdom, although this does not mean that one cannot be brought."

The solicitors sent that letter on to Mrs Das and encouraged her to pay the legal aid contribution and take the matter further. But the legal aid offer had lapsed. A fresh application was made, but there was not a further offer until 31st April 1989, when the new offer was subject to a contribution of £7,496.

After some discussion, Mrs Das decided to instruct counsel privately, and that was done on 2nd May 1988. The opinion of counsel (which is nowadays called an "advice") was received on 10th May 1988, and it has been put before us. There are, it seems to me, three points to note in the opinion. First, counsel advised that Monica, the daughter, had no claim. That was right. There had been a case in 1982, McKay v Essex Area Health Authority [1982] QB 1166, where it was decided that a person born with congenital rubella syndrome could not claim damages for having been born. Secondly, counsel advised that a claim by Mrs Das would not be a claim for personal injury. That, as subsequent events show, was wrong. It is now accepted that it is a claim for personal injury. Counsel said that the effect of this was that there was an insuperable obstacle in the limitation point. Presumably he considered that, without the advantage of the extended period provided by section 11 in cases of personal injury, the period of time that had elapsed would be a major problem. But then, on the very next page, he said:

There had already been two decisions which might well have led counsel to a different conclusion on the personal injury point. They were Emeh v Kensington and Chelsea and Westminster Health Authority [1985] 1 QB 1012 and Thake v Maurice [1986] 1 QB 644. They were, it is true, cases of sterilisation that failed. The complaint there was of unwanted pregnancy, and it was decided that that could and did give rise to personal injury. It is a question for consideration whether counsel should have derived from those two cases the conclusion that the case of Mrs Das was also one of personal injury.

I return to the narrative (which, as I ought to have said, is very largely derived from the judge's judgment). The plaintiff, Mrs Das, and her husband did not accept the new offer of legal aid. They were pressed by the solicitors to pay their fees, and they reached the conclusion that they could not continue. On 11th September 1989 the solicitors wrote:

"In accordance with your advice, I would inform you that we no longer wish to pursue the matter at the present time in view of the prohibitive costs involved. However, it is our firm intention to bring in the appropriate claim when Monica, our daughter, reaches her 16th birthday to become eligible for legal aid in her own right."

On that day they sent a cheque for the fees. Five days later, 19th October 1989, is the last date of the period in which it is accepted that the date of knowledge occurred. That, as it seems to me, is the end of the second stage. On that date the cause of action was, on any view, still alive.

The third phase is from October 1989 to September 1996, when the writ was issued. Mrs and Mrs Das start that period with unfavourable advice from counsel as to their own prospects of success, albeit it was to some extent inconsistent, and favourable advice from the solicitors that when Monica reached the age of 16 she would be able to sue.

The remaining events I can summarise very briefly. On 7th July 1993 they had acquired new solicitors, Martin Shepherd & Co, and they obtained a legal aid certificate to bring proceedings against Dr Ganju in the name of Mrs Das. On 23rd November 1995 that certificate was amended to enable Mrs Das to bring proceedings against Daniel and Harris, the first solicitors. On 6th June 1996 the certificate was reamended to enable Mrs Das to bring proceedings against Dr Ganju instead of the solicitors. On 17th September 1996 the writ was issued by Martin Shepherd & Co, the new solicitors. So that was 18 years after the cause of action arose, a very long period, and that is what we now have to consider.

The first ground of appeal is based on Walkley v Precision Forgings [1979] 1 WLR 619. There the plaintiff started an action in time, but it was struck out or discontinued for some reason, and it was held that the plaintiff could not avail himself of section 33 so as to disapply section 11 in a second action. The ground for that decision was that the wound was self-inflicted. Counsel for Dr Ganju wished to submit in this appeal that the same doctrine would apply where there was only one action but it was started late through the plaintiff's own dilatoriness and again was self-inflicted. It would have been said that there was no discretion in the court in such a case, because the prejudice to the plaintiff was not caused by section 11 but by her own dilatory conduct. That submission has not been pursued in this court since the case of Shapland v Palmer , decided on 23rd March 1999 and reported briefly in today's copy of The Times. So what we have to decide is whether the judge was right to exercise the discretion in section 33 of the Limitation Act 1980 in favour of Mrs Das.

Then in section 33(3) it is laid down that the court shall have regard to all the circumstances of the case and in particular to six matters which are there listed from (a) to (f). I shall take those matters first before returning to the general question in section 33(1).

The first of them, item (a), is the length of delay on the part of the plaintiff and the reasons for it. That means delay after the expiration of the period of limitation provided by section 11. That was what Lord Diplock said in Thompson v Brown [1981] 1 WLR 744 at 751. So in this case that is a reference to the period of the delay between 1990 or 1991, when the limitation period expired, and 1996, when the writ was issued, a period of five or six years. The reasons for that delay? As it seems to me, the main reason was clearly misleading advice given by counsel and solicitors. Whether negligent or not, the advice was unnecessarily discouraging in one respect, while encouraging another course which was the wrong one to pursue.

Before the judge the primary case for Dr Ganju was that counsel who had advised earlier was right, and this was not a personal injury case, so that no extension could be obtained under section 11 until the date of knowledge. In this court it has been said by Mr Grace that counsel was wrong: it was a personal injury case; and he adds that counsel was negligent too, and so were the solicitors. I would agree with him that counsel was wrong in one respect and the solicitors were wrong in one respect; whether negligent or not is not altogether clear at this time. It may be that counsel should have had regard to the cases of Emeh and Thake and might have concluded that it was a personal injury case; but that was only finally concluded in Walkin v South Manchester Health Authority [1995] 1 WLR 1543, which had not then been decided. The advice of solicitors was already inconsistent with a court decision, namely the case of McKay, but in that case too it was not altogether clear that the advice was negligent.

Item (b) in section 33(3) is the extent to which, having regard to the delay, the evidence adduced or likely to be adduced is or is likely to be less cogent than if the action had been brought within the time allowed by section 11. There is no complaint to us on behalf of Mrs Das that her evidence is likely to be less cogent, although I would have thought it would be. It is essential, we are told, for an expert to know what the appearance of the rash was before he could advise as to whether Dr Ganju was negligent, or at any rate to know how long it lasted. How can Dr Ganju remember that now? How indeed could she remember it in 1987/88, when the limitation period began to run? So indeed there must have been a loss of cogency; but the loss of cogency was probably much greater during the period before the limitation expired than in the delay that occurred afterwards. This is of course a familiar argument in the dismissal of cases for want of prosecution. There may have been - there probably has been -some further deterioration of memory since 1987 or 1988, but I would say not very much.

Then there is the question of expert evidence. On the part of Mrs Das, this would be to the effect that any person who was pregnant and had a rash should be sent for a blood test, whatever the rash looked like. Maybe I put it too simply, but that seems to be the gist of it. There was some cross-examination of the proposed expert as to whether he would have difficulty, looking back over 20 years, as to what had been the standard of care and the normal practice of doctors 20 years previously. I am not much impressed by that. So the point about the cogency of evidence was not, I think, really a factor to any great extent against Mrs Das's claim.

"I am critical of the defendant for not reacting to the letter from Dr Havalad on 21st January, and also that of 11th April 1979 which she agreed she must have received because she has put a tick on it. Monica was by then clearly very handicapped with bilateral cataracts, congenital heart disease and microcephaly. The defendant did not discuss this with the plaintiff. If she had, events must have moved much more quickly because the plaintiff would almost certainly have been fixed with knowledge well within the primary limitation period."

It is said on behalf of Mrs Das that item (c) of the subsection refers to the conduct of the defendant in forensic matters in the litigation rather than in other respects; and that was the view put forward in Halford v Brookes [1991] 1 WLR 428. On the other hand, there is authority that doctors owe a duty of candour to their patients: see the judgment of the Master of the Rolls in Naylor v Preston Area Health Authority [1987] 1 WLR 958 at 967. I have some difficulty in deciding whether the judge's criticism was properly put under item (c) in section 33(3). Assuming that it was not, and that the judge was wrong in including that as a reproach against Dr Ganju for section 33 purposes, I do not regard that as a serious or significant error on the part of the judge.

I turn to items (e) and (f). In my view this case turns on the factor of wrongful advice. In no respect whatever do I think that there is ground for criticism of Mr and Mrs Das personally; and I say that despite the fact that the letter to their solicitors from the Medical Defence Union was not answered. They have, as it seems to me, struggled against misfortune, both legal and medical, for 20 years, without any fault of their own.

"In a discretionary jurisdiction where the court is required to have regard to ´all the circumstances of the case' it would clearly be inappropriate to look for hard and fast rules, but counsel were agreed in this court that the section must be read as incorporating one underlying principle. In the process of assessing equity and balancing prejudice which the section enjoins, a party's action or inaction cannot be divorced from the acts or omissions of his legal representative. The principle in that respect is analogous to that applying in cases of striking out for want of prosecution."

If that passage means that as a matter of law anything done by the lawyers must be visited on the client, it cannot in my view be reconciled with other authority. It appears to have been a concession which the court accepted. The other authority is Thompson v Brown [1981] 1 WLR 744 and the speech of Lord Diplock at pp.750 and 752, which I do not set out for fear of lengthening this judgment even further. I would also return to Halford v Brooks , where again it is said that it is no reproach to the plaintiff that he has received the wrong legal advice.

In this case I have no doubt that there will be prejudice to Mrs Das if her present action is struck out and she is left with a claim that must be somewhat speculative against solicitors and counsel. She will then have two hurdles to overcome - proof of the merits of her action against Dr Ganju, and proof that her counsel and solicitors were negligent.

She will also, as the judge said, have to start again. He added that she will have to demonstrate that this action would have succeeded. That is not an absolute requirement. But it is a necessity if she is to recover the full amount of any damages that she would have been entitled to in this action.

As required by section 33(1), having now considered the factors, amongst all other circumstances, to be taken into account in section 33(3), I have to consider the degree to which Mrs Das will be prejudiced if effect is given to section 11 of the Limitation Act, and the prejudice to Dr Ganju if section 11 is disapplied. Having done so, I am in no doubt that it would be equitable to allow the action to proceed.

LORD JUSTICE BUXTON: The application in this case was to some extent unusual as Limitation Act applications go, as the judge heard evidence over a period of two days, including evidence from the plaintiff, the defendant and the expert to be called at the trial on behalf of the plaintiff. He was therefore very well placed indeed to assess the issues raised in this as in most limitation actions as to the matters that would be in dispute at trial and the fairness of trying them should a trial be permitted to take place. In those circumstances, the appellant faced an even more difficult task than usual in asking this court to disturb the judge's exercise of his discretion under section 33 of the Act. I agree with my Lord that that attempt fails.

It is important to keep well in mind that the date of relevant knowledge on the plaintiff's part is agreed to have been some time between June 1987 and October 1988: that is, some nine or ten years after the alleged negligence. That factor in itself imposes obvious difficulties of recollection and difficulties for both parties and for the court at the trial. But such a problem must have been well in the mind of Parliament when, for very good reasons, it was provided by section 11 of the Act that the period of limitation should start to run from the date of knowledge on the part of the person injured. We therefore have to concentrate, as did the judge, on what happened after that date of knowledge.

So far as the reasons for not proceeding within the limitation period are concerned, I agree with the submission advanced by Mr Richardson, which I understood Mr Grace to accept, that, as demonstrated in the speech of Lord Diplock in Thompson v Brown at p.752C of the report of that case, the failings of the plaintiff's lawyers are not, in that respect, to be visited upon her. I agree with the reserve that my Lord has expressed in that connection in respect of Whitfield v North Durham Health Authority in this court. Further, as my Lord has said (and I entirely agree, with respect), there was no other way in which the plaintiff's conduct could be properly criticised, and therefore the judge was clearly right to hold that the delay as such could not be laid at her door under section 33(3)(a).

As to the factors in the case that affected the issue of prejudice, both to the parties and to the fairness of the trial, the judge, as I have already emphasised, had the advantage of hearing the witnesses, including the expert evidence of Mr Argent on behalf of the plaintiff. There was clearly ample material before him on which it was open to him to conclude, first, that the case was a strong one; and secondly, that it had not been shown that there would be relevant difficulties in assessing the evidence. Recollection will of course be difficult; but, first, that problem already existed when the limitation period started to run; and secondly, the problem may have been over-emphasised, as shown, for instance, by the fact that the judge, having heard evidence about it, had expressed himself as having had no difficulty in reaching a conclusion on the apparently much disputed question of whether the plaintiff was seen by Dr Ganju at home or in her surgery on the occasion when the rash was identified.

As to expert evidence, although Mr Argent was prevailed upon in cross-examination to agree with the proposition that, after 20 years, hindsight will be a danger, he equally agreed with the defendant's proposition that the court's task will be to identify what was proper medical practice in 1978. That is a very familiar task in medical negligence cases, and nothing was said to demonstrate that any particular difficulty arose in that respect in this case. Indeed, the defendant could not so contend, since she called before the judge no evidence to counter the opinion of Mr Argent, accepted by the judge, that that task could be undertaken and would demonstrate that the defendant's practice had been wrong. How all this will appear at the trial is, of course, another matter. But the appellant quite failed to demonstrate that there was any fault in the conclusion that the judge had reached, on the provisional basis appropriate to a striking out application.

The other point substantially argued on the matter of prejudice was that the plaintiff could be prevented from pursuing this case without relevant prejudice to her because of the availability of an action against her lawyers. As I understand it, this point only arises in cases where it is established that otherwise the plaintiff should be permitted to proceed, but in favour of the defendant she is forced back on to her alternative remedy.

I am quite clear that this is very far from being the sort of case in which it is appropriate to permit that consideration to enter into the balance. I would want to reserve the issue of whether this consideration can reasonably apply in any event other than in cases where, as it was put in Thompson v Brown , the plaintiff has an unanswerable claim against his solicitors. However, in the present case, there are serious problems about the proposed actions. The doubt as to the success of a claim against counsel is best illustrated by the fact that the very experienced leader who represented the defendant in the court below (not Mr Grace, who now represents her) disclaimed any allegation that counsel had been negligent. As to the solicitors, although they are agreed to have been wrong in telling the plaintiff that Monica could sue on her own account on reaching the age of 16, it seems to me difficult or impossible to establish that it was that advice that caused the plaintiff not to sue in 1989. The second-hand ventilation of the issues in this case in litigation against solicitors or counsel is therefore, in the plaintiff's interests, a quite inadequate substitute for the ventilation of those issues in a direct action against the defendant.

Like my Lord, I am less clear than the judge was that the conduct of the defendant in not reacting to the hospital letter should be taken into account, however surprising that may appear, in general terms, to have been. The extent to which section 33(3)(c) extends beyond failure to co-operate in investigations once put in hand is not clear on the authorities, and this is not the case in which to seek to resolve those problems. Nor is it clear what the effect would have been of Dr Ganju intervening with Mrs Das after the letter had been received, or indeed to what extent the causal effect of the defendant's conduct had to be taken into account under section 33(3)(c). My doubts on those points have no effect on the outcome of the case. The judge had very strong reasons, already set out, for concluding as he did without reference to this conduct point and, plainly and rightly, would have found as he did even if it had not existed. In that as in other respects, therefore, his judgment cannot be faulted.

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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Das v Ganju [1999] EWCA Civ 1152 (31 March 1999) URL: http://www.bailii.org/ew/cases/EWCA/Civ/1999/1152.html Cite as: [1999] LLR Medical, [1999] EWCA Civ 1152, [1999] PIQR P260

England and Wales Court of Appeal (Civil Division) Decisions