Farthing v North East Essex Health Authority 1997

FACTS:-

In 1981, the Claimant underwent a total abdominal hysterectomy at the Defendant’s hospital. She claimed that the surgeon was negligent in the manner that he carried out that operation, but the Defendant raised the issue of limitation.

It was plain that the operation was negligent. He occasioned damage to the right ureter and that in turn led to a triple fistula involving the ureter, the bladder and the vagina. This necessitated a second operation, which cured the Claimant’s incontinence. There was some discomfort and back trouble, together with intermittent infections. In 1986 she suffered an abscess at the site of the incision, which had been made by the repair surgery, but this spontaneously resolved. In February 1989 she was admitted to hospital as an emergency case. A stone had formed in the stump of the ureter and she had a pelvic abscess. Since that time she had suffered from urinary tract infections and general ill health.

In August 1993 she was told by her GP that all her problems dated back to the hysterectomy, which had been negligently undertaken. In September 1993 she approached solicitors. Advice was sought from medical experts, but their advice was conflicting. In August 1995, she issued proceedings.

The trial judge found that her date of knowledge was in late 1981, but exercised discretion under Section 33 of the Limitation Act 1980 in her favour. The Defendant appealed.

JUDGMENT:-

Lord Justice Simon Brown went over the facts of the case. The Defendant’s counsel argued that the trial judge had placed excessive weight on the failure of the Defendant to obtain a statement from the surgeon who carried out the operation. Simon Brown LJ rejected that argument.

In relation to the tendency of witnesses’ memories to recede, it would generally be not merely possible but indeed appropriate to draw an inference that potential witnesses’ memories have faded to such an extent as to imperil the quality of their evidence without there being any specific sworn evidence to such effect.

However even had this case been tried, as at the earliest it could have been, some four or five years after 1981, the contribution that the surgeon could have made by way of recollection and oral evidence to the court’s ability to resolve the issues arising, would not have been significantly greater than it would be were the matter to be tried now. The case turned on the contemporaneous material in the way of hospital records, notes and correspondence rather than on the oral evidence of the doctors involved in the case.

The trial judge had carefully balanced all the issues and said that it had been a close decision. This was not a case with which the Court of Appeal should interfere. Simon Brown LJ said that he might have made a different decision at first instance, but in this case he would dismiss the Defendant’s appeal.