A Health Authority appealed against a decision that a clinical negligence claim by the claimant was not statute-barred. The claimant had suffered cerebral palsy caused by brain damage sustained at his birth after a junior doctor attempted for over half an hour to deliver him using forceps in the Authority’s hospital in 1974. The claimant had known that he been delivered by forceps and that his condition was caused by a lack of oxygen at birth, but had not investigated as he felt unimpeded by his condition. However, his condition worsened and he brought proceedings in 2006 against the Authority. The claimant cross-appealed against the decision that, had the claim been statute barred, the court would not exercise its discretion under section 33 of the Limitation Act 1980 to allow the action to proceed.

The Court of Appeal allowed both the appeal and the crossappeal. The court found that the trial judge had erred in taking into consideration subjective matters when looking into whether the claimant had knowledge of the alleged negligence. The court found that a reasonable person would have known that his injury was signifi cant and would have asked questions about his delivery. The claimant would therefore have had knowledge of the negligence no later than his early 20s. Therefore, the court held the claim was statute-barred. However, they also found that the trial judge had erred when exercising his discretion under section 33, by not taking into account the substantial prejudice the claimant would suffer from having his claim barred. Therefore, the court considered it was equitable to allow the claimant’s claim to proceed.

Whiston v London SHA [2010]