Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 28477/95

by Margaret DOBBIE

against the United Kingdom

The European Commission of Human Rights (First Chamber) sitting

in private on 16 October 1996, the following members being present:

Mrs. J. LIDDY, President

MM. M.P. PELLONPÄÄ

E. BUSUTTIL

A. WEITZEL

B. MARXER

G.B. REFFI

B. CONFORTI

N. BRATZA

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

M. VILA AMIGÓ

Mrs. M.F. BUQUICCHIO, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 28 April 1995 by

Margaret DOBBIE against the United Kingdom and registered on

8 September 1995 under file No. 28477/95;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a United Kingdom national born in 1926 and

residing in Sittingbourne, Kent. Before the Commission she is

represented by Ms. Nuala Mole, a lawyer practising in London.

The facts of the case as submitted by the applicant may be

summarised as follows.

Particular circumstances of the case

In the summer of 1972 the applicant discovered a lump in her left

breast. She consulted her general practitioner who told her it was

only mastitis. She returned to him on several occasions because the

lump seemed to be increasing in size and was painful. She was referred

to a consultant.

On 19 March 1973 she was seen by a medical consultant who found

a "mobile lump" in her left breast and recommended that it be excised.

On 26 April 1973 the applicant was admitted to hospital for a biopsy.

During the course of the operation the surgeon excised the lump and

after examining it visually and by probing it found that it looked

"pre-cancerous". On the basis of this observation the surgeon

proceeded to perform a mastectomy, thus removing the applicant's left

breast. The question whether the applicant had given her prior consent

to the possibility of a mastectomy being performed is disputed.

When the applicant recovered from the anaesthetic she discovered

that the whole of her left breast had been removed. She was told by

the doctors that since the lump had looked suspicious it had been safer

to remove the breast in case the lump had been cancerous.

On 14 May 1973 the pathologist's report of the examination of the

lump revealed that it had been benign. Several weeks later, when she

visited the clinic, the applicant was informed of this finding. She

was also told that the hospital did not have facilities for testing

lumps for malignancy while the patient was still under the anaesthetic

and that therefore her breast had been removed to be safe and to avoid

the risk in case the lump would have been cancerous.

The applicant suffered considerably as a result of the loss of

her breast. During the following years she had deep depression and was

admitted on several occasions to a psychiatric hospital.

In 1988, fifteen years later, the applicant learnt of another

woman in a similar position who had successfully sued her surgeon. The

applicant then thought that in her case too the mastectomy should not

have been performed before the results of the microscopic examination

were known. In May 1989 the applicant's solicitors brought an action

for damages and personal injury against the responsible health

authority.

On 14 February 1992 Mr. Justice Otton at the High Court rejected

the applicant's claim as it was brought after the expiry of the three-

year time limit under the Limitation Act 1980 (see below Relevant

domestic law). In his judgment Mr. Justice Otton, when applying the

legal criteria for determining the initial date from which this time

limit was running for the applicant, turned to the issue of the date

she first had knowledge of the facts that the injury was attributable,

in whole or in part, to the act or omission alleged to constitute

negligence. In this respect the judge emphasised that the relevant

moment was when the applicant had knowledge "of the facts" showing that

the injury was attributable to the act of the defendant. He stated

further:

"If the [law] had provided that the critical date was when

the [applicant] learnt that she had a good cause of action in

law, it would mean that the time limit in many personal injury

actions would only begin to run from the date of the receipt of

the expert's opinion that the injury was due (as a matter of

law) to the defendant's negligence or breach of duty. This is

clearly not the law ...

...

I therefore have to scrutinize the facts that were known

to the plaintiff within the limitation period. On her evidence

she knew that:

1. She had been admitted for a biopsy only.

2. Her left breast had been removed.

3. The lump when examined had not been malignant but benign.

4. That the decision to remove had been taken before the

histological test had been carried out and the result

known.

5. There were no facilities for histological examination at

[the] hospital.

6. She had not given her consent to the removal of her

breast.

7. Her knowledge of the foregoing had caused her acute and

prolonged anger, distress and psychological damage as well

as physical damage.

In my judgment, she had broad knowledge of sufficient facts

to describe compendiously that her breast had been unnecessarily

removed, that something had gone wrong and that this was due to

the defendants' negligence and further (or in the alternative)

that it had been removed without her consent. Even though she

might not have had the knowledge to enable her counsel to draft

a fully and comprehensively particularised statement of claim,

in my view she had knowledge of the nature referred to in

Section 14(1)(b) sufficient to set time running against her both

in negligence and trespass.

Thus, without reference to Section 14(3), on which I

consider the Defendants do not need to rely, the Plaintiff,

after her visit to the surgeon's clinic in June 1973, well knew

that her injuries were capable of being attributable to what

could compendiously be called the Defendants' fault. This

knowledge was enough to set the time running against the

Plaintiff under the combined effects of Sections 11(1), (3) and

(4) and Section 14(1) of the Act. It follows that the relevant

period expired in April 1976 for any cause of action based on

lack of consent and in June 1976 for any cause of action in

negligence."

The judge further found that despite her depression the

applicant's condition had never been such that she had been under a

disability to act. There were substantial periods when the applicant

could have obtained expert advice if she had taken reasonable steps to

do so. The judge also found that it would have been reasonable for her

to seek such advice within three years of knowing the result of the

biopsy or, in any event, earlier than fifteen years following the

events complained of.

The judge also declined to exercise his discretionary power under

Section 33 of the Limitation Act 1980 (see below Relevant domestic law)

to disapply the time limit and to allow the action to proceed on the

basis of considerations of equity. He observed inter alia that he was

dealing with the case almost nineteen years following the events and

that the defendants would be prejudiced on certain issues of evidence,

such as the vital question whether the applicant consented to the

possibility of a mastectomy being performed. The evidence in this

regard consisted of the recollections of the applicant and of two

doctors, one of whom could not be found. Despite the fact that other

important evidence was contained in hospital documents which were

available, the balance of prejudice was in favour of the defendants.

On 11 May 1994 the applicant's ensuing appeal was dismissed by

the Court of Appeal. The judgment confirmed in principle the

conclusions of Mr. Justice Otton. It also stated inter alia that

knowledge that the facts complained of were "negligent" as a matter of

law, was irrelevant to the running of the time-limit under the

Limitation Act 1980. Moreover, the applicant's argument that in 1973

she had lacked the knowledge that the mastectomy had been

"unnecessary", was "simply an attempt to argue that the injured party

must know that [she] has a possible cause of action". However, this

was not the law. Some legal reform proposals for the introduction of

requirements such as knowledge "that the defendant was at fault" had

been rejected by the Parliament in 1975 and 1980 as the concept of

"fault" would have been imprecise and impossible to define.

On 31 October 1994 the applicant's request for leave to appeal

from the House of Lords was refused.

Relevant domestic law

Section 11 of the Limitation Act 1980, which provides for a

special time limit for actions in respect of personal injuries, insofar

as relevant reads as follows:

"(4) ... the period applicable is 3 years from:

(a) The date on which the cause of action accrued;

or

(b) The date of knowledge (if later) of the person injured".

Section 14 contains a definition of date of knowledge for the

purpose of Section 11:

"(1) In Section 11 ... 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;

(b) That the injury was attributable in whole or in part to the

act or omission which is alleged to constitute negligence;

...

and knowledge that any acts or omissions did or did not as a

matter of law involve negligence ... is irrelevant.

(2) For the purposes of this section an injury is significant

if the person whose date of knowledge is in question 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.

(3) For the purposes of this section 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 obtainable 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 sub-section with

knowledge of a fact ascertainable only with the help of expert

advice so long as he has taken all reasonable steps to obtain

(where appropriate to act on) that advice".

Section 33, insofar as relevant, provides as follows:

"If it appears to the court that it would be equitable to allow

an action to proceed having regard to the degree to which:

(a) the provisions of Section 11 ... prejudice the plaintiff;

(b) any decision of the court would prejudice the defendant ...

the court may direct that those provisions shall not apply to the

action ...

(3) In acting under this Section the court shall have regard to

all circumstances of the case and in particular to:

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

of the plaintiff;

(b) 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 ...

(f) the steps, if any, taken by the plaintiff to obtain

medical, legal or other expert advice ..."

COMPLAINTS

1. The applicant complains under Article 6 para. 1 of the Convention

that she was denied access to court for the determination of her civil

right to compensation. She alleges that the date of knowledge test as

set out in the Limitation Act 1980 and as applied by the courts in her

case operated so as to extinguish her right to bring an action before

she was aware of any facts that would have reasonably prompted her to

seek legal advice with a view to do so.

Thus, what was "wrong" in her case was not that her breast had

been removed, removal of healthy tissue being often an inevitable part

of certain medical processes, but that this removal, in the particular

circumstances, was not a normal medical practice. Therefore, in 1973

the applicant knew that she suffered a "loss" (damnum), but she did not

know that this loss constituted an "injury" (injuria). This she

learned only later, when she became aware of the normal medical

practice which should have been followed in her case.

The applicant further contends that, although it is generally

appropriate to impose time-limits on the bringing of civil actions,

there are special problems in cases of lay persons who are victims of

medical negligence. Thus, the applicant believed the assurances given

to her that the mastectomy had been in her interest and, naturally,

could not be reasonably expected to seek legal advice to bring an

action. In this situation the date of knowledge definition, as applied

by the courts, is a restriction without a legitimate aim, as it could

not possibly operate to encourage sorting out of all claims without

delay. It simply had the effect of excluding any reasonable

possibility to bring an action.

The applicant also invokes the principle of "equality of arms"

and states that she, as a lay person, was seriously disadvantaged

compared to the medical profession as she did not have specialist

knowledge.

The applicant further asserts that even assuming that the

limitation on access to court resulting from the date of knowledge

definition had a legitimate aim, it was not applied in a manner

proportional to this aim.

2. The applicant complains also under Article 6 para. 1 taken in

conjunction with Article 14 of the Convention that victims of medical

negligence cannot enjoy the same access to court as other victims of

negligence unless they are in possession of the specialist medical

knowledge to enable them to know that the treatment they had received

may have been inappropriate. On the other hand the lack of specialist

knowledge would not have the effect to preclude a civil claim, for

example, for a person who is injured on the road or in the workplace,

or even in cases which in principle require specialist knowledge, but

not of medical character.

3. The applicant also complains under Article 13 in conjunction with

Article 8 of the Convention that the procedural bar to litigation in

her case deprived her of an effective remedy in domestic law for the

interference with her right to respect for her physical integrity and,

hence, for her private life.

THE LAW

1. The applicant complains under Article 6 para. 1 (Art. 6-1) of the

Convention that the date of knowledge test, which concerned the initial

moment of the running of the time-limit for bringing an action for

damages, as applied by the courts in her case, operated so as to amount

to a denial of access to a court. Article 6 para. 1 (Art. 6-1) of the

Convention, insofar as relevant, provides as follows:

"In the determination of his civil rights and obligations ...,

everyone is entitled to a ... hearing ... by a ...

tribunal..." The Commission recalls the Court's case-law

according to which the right to access to a court is not absolute

but may be subject to limitations, since by its very nature this

right calls for regulation by the State, regulation which may

vary in time and in place according to the needs and resources

of the community and of individuals. In laying down such

regulation, the Contracting States enjoy a certain margin of

appreciation, but the final decision as to observance of the

Convention's requirements rests with the Convention organs. They

must be satisfied that the limitations applied do not restrict

or reduce the access left to the individual in such a way or to

such an extent that the very essence of the right is impaired.

A limitation will not be compatible with Article 6 para. 1

(Art. 6-1) if it does not pursue a legitimate aim and if there

is not a reasonable relationship of proportionality between the

means employed and the aim sought to be achieved (see, as a

recent authority, Eur. Court HR, Bellet v. France judgment of

4 December 1995, Series A, No. 333-B, para. 31).

Also, it must generally be accepted in the interests of good

administration of justice that there are time-limits within which

prospective proceedings must be introduced. Time-limits imposed on the

introduction of claims pursue the legitimate aim of preventing stale

claims and the possible injustice to defendants faced with evidential

difficulties in contesting allegations relating to distant events and

of promoting legal certainty (No. 9707/82, Dec. 6.10.82, D.R. 33

p. 223; Leslie Stubbings, J.L. and J.P. v. the United Kingdom, Comm.

Report 22.2.95, unpublished). Furthermore, the Commission's case-law

has established that the need for legal certainty may justify the

imposition of time-limits which cannot be waived even when new facts

arise after the expiry of the relevant time-limit (No. 9707/82, Dec.

6.10.82, D.R. 31 p. 223). The Commission also refers to the six-month

time-limit set down by Article 26 (Art. 26) of the Convention and to

its own strict approach in this respect (see, for example, No.

10416/83, K v. Ireland, Dec. 17.5.84, D.R. 38 p. 158).

The Commission further recalls that it is not a court of appeal

from the national courts. Under Article 19 (Art. 19) of the Convention

its only task is to ensure the observance of the obligations undertaken

by the Parties to the Convention. It cannot examine complaints about

errors of fact or law allegedly committed by domestic courts, except

where it considers that such errors might have involved a possible

violation of any of the rights and freedoms set out in the Convention

(No. 7987/77, Dec. 13.12.79, D.R. 18, p. 31)

The Commission notes in the present case that Section 11 of the

Limitation Act 1980 allowed for an extension of the relevant limitation

period in cases where a plaintiff did not at the pertinent time have

knowledge that the injury was significant or that it was attributable

in whole or in part to the act or omission alleged to constitute

negligence. The Commission further notes that Section 33 of the Act

provided that the courts can disapply the provisions of Section 11 if

having regard to all the circumstances of the case it would be

equitable to allow the action to proceed. It does not appear,

therefore, that the relevant law as such restricted or reduced the

access to court left to a plaintiff in a way which would affect the

very essence of the right to a court as enshrined in Article 6 para. 1

(Art. 6-1) of the Convention.

The applicant complains, however, of the application by the

courts in her case of these provisions in circumstances where she knew

that she had suffered a loss but did not know at the time that the act

which resulted in this loss was not in conformity with the normal

medical practice. Her complaint concerns the determination by the

courts of the initial moment from which the time-limit for bringing her

action was to be counted.

The Commission notes in this respect that when determining this

moment the courts applied the established legal criteria in examining

the relevant facts and, in particular, the applicant's own recollection

of the events of 1973. The courts noted that the applicant was aware,

in 1973, that her breast had been removed without prior analysis of the

suspicious lump and that the lump had proven benign. The courts also

took into account the situation of the applicant in general. On the

basis of all these considerations the courts concluded that it would

have been reasonable for the applicant to seek specialist advice, with

a view to ascertaining whether there had been negligence in her case,

within three years of knowing the result of the biopsy or, in any

event, earlier than fifteen years following the events complained of.

In these circumstances the Commission considers that it is not

called upon to undertake its own examination of the evidence in the

applicant's case and to replace the courts' assessment of the facts by

its own. The Commission cannot, as urged by the applicant, embark on

a review whether the courts were correct in their conclusion that she

could be reasonably expected to act earlier. Whether knowledge of

certain medical practice was necessary for her to be reasonably

expected to inquire about a possible cause of action for medical

negligence was a matter of assessment of the particular situation, and

this was done by the domestic courts.

Furthermore, the approach adopted by the domestic courts in

exercising their discretion under Section 33 of the Limitation Act 1980

was neither arbitrary, nor unreasonable. The courts balanced the

opposing interests of the applicant and of the defendant and took into

consideration all surrounding circumstances.

The Commission finds, therefore, that the procedural time-limit

for bringing of the applicant's claim for damages did not operate in

a way so as to restrict or reduce her access to a court in a manner

incompatible with Article 6 para. 1 (Art. 6-1) of the Convention.

Finally, insofar as the applicant invokes the principle of

"equality of arms", the Commission notes that this applies to

proceedings actually undertaken.

It follows that this part of the application is manifestly ill-

founded and has to be rejected under Article 27 para. 2

(Art. 27-2) of the Convention.

2. The applicant also complains, invoking Article 6 para. 1

in conjunction with Article 14 (Art. 6-1+14) of the Convention, that

victims of medical negligence cannot enjoy the same access to court as

other victims of negligence unless they are in possession of the

specialist medical knowledge to enable them to know that the treatment

they had received may have been inappropriate.

However, the Commission has just found that the determination of

the initial date of running of the time limit in the applicant's case

was based on an analysis of the complex of particular facts surrounding

the events of 1973 and on an assessment whether she had been aware of

the facts which would reasonably induce her to seek expert advice. It

does not appear, therefore, that the domestic courts treated the

applicant differently based on her lack of specialist knowledge or,

indeed, on any other basis.

It follows that this part of the application is also manifestly

ill-founded and has to be rejected under Article 27 para. 2

(Art. 27-2) of the Convention.

3. The applicant also complains under Article 13 in conjunction with

Article 8 (Art. 13+8) of the Convention that the procedural bar to

litigation in her case deprived her of an effective remedy in domestic

law for the interference with her right to respect for her physical

integrity and for her private life.

Insofar as the applicant may be understood as claiming that the

acts of the medical doctors in 1973 constituted an interference by a

public authority with her right to respect for her private life, so

that Article 13 (Art. 13) would require the existence of an effective

remedy in respect of such interference, the Commission need not decide

whether the applicant could have had an arguable claim under Article

8 of the Convention, as the complaint under Article 13 (Art. 13) is in

any event manifestly ill-founded. The Commission recalls the

established case-law according to which where the right claimed is of

a civil character, the guarantees of Article 13 (Art. 13) are

superseded by the more stringent requirements of Article 6 (Art. 6) of

the Convention (No. 13021/87, Dec. 8.9.88, D.R. 57, pp. 268, 277).

However, the Commission has already found that the procedural bar to

the applicant's claim for damages did not amount to a breach of her

right to access to a court under Article 6 para. 1 (Art. 6-1) of the

Convention.

It follows that the remainder of the application is also

manifestly ill-founded and has to be rejected under Article 27 para. 2

(Art. 27-2) of the Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

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DOBBIE v. THE UNITED KINGDOM

DOBBIE v. THE UNITED KINGDOM