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Case note: Clinical negligence

Published: 29 November 2021

In an important decision for those bringing proceedings against an estate for breach of contract, and for clinical negligence cases more generally, the Master of the Royal Court has considered the issue of prescription, and the extent to which Plaintiffs can pursue a claim in tort and/or contract against a deceased defendant.

Facts

Our client, the Plaintiff, suffered a stroke in April 2016. Opportunities to diagnose his high blood pressure, the major risk factor for stroke, were allegedly missed by the Plaintiff’s GPs as far back as 2007. One of the GPs (the “Defendant”), unbeknownst to the Plaintiff, sadly died in April 2020. The Plaintiff subsequently brought proceedings and the Defendant made an application to strike the claim out on the basis that, inter alia, the Plaintiff had brought his claim too late and was therefore out of time, both in terms of his date of knowledge, and because the Plaintiff had brought the claim more than a year and a day after the GP had died.

  • Date of Knowledge

The Defendant argued that the Plaintiff suffered injury in March 2016, when it was first discovered he was suffering high blood pressure, and just before the stroke occurred. It was submitted that time started to run at that stage because any empêchement (an impediment to bring a claim), ceased to have effect as the Plaintiff had already suffered injury, being the high blood pressure itself. In response, the Plaintiff argued that until a medical expert produced a report, identifying the GP care had been below a reasonable standard, time could not start to run because he did not have actual knowledge of the negligence. The Master of the Royal Court distinguished between cases where the “ignorance is about injury suffered and cases where ignorance is about a breach of duty” and found in favour of the Plaintiff agreeing the Plaintiff could not be expected to have known he had received negligent care.

  • A Year and a Day after Death

Under Jersey’s ancient customary law rules, the heirs of an estate ordinarily have a period of year and a day from the deceased’s death, or the date of the grant of probate, to bring claims against his or her estate.

In addition, the Customary Law Amendment (Jersey) Law 1948 (the “1948 Law”) provides that no cause of action in tort will survive unless the Plaintiff has issued proceedings against the deceased person prior to his or her death or does so within 6 months after the grant of probate.

The Defendant argued that the Plaintiff should not be able to bring a tortious claim, or a breach of contract claim against the estate outside of this general year and a day time period. Further, the Defendant submitted that the 1948 Law was not limited to tortious claims and applied equally to proceedings for breach of contract. The Master of the Royal Court rejected these arguments and distinguished between claims brought by heirs and those of a differing nature, such as claims for breach of contract. The Master further determined that the 1948 Law did not preclude claims in contract being issued after the 6-month time limit.

Conclusion

Although each case will of course turn on its own facts, this Judgment provides useful guidance in terms of how the court might treat the effective date of knowledge in clinical negligence cases. It also assists in providing clarity as to the time period within which claims for breach of contract may be brought against an estate.

Viberts has considerable experience in providing advice and representation to clients pursuing clinical negligence claims. If you have any questions please feel free to contact Corinne Holmes in our Litigation team on telephone number 01534 632217 or alternatively email her at: corinne.holmes@viberts.com

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