In the case of O'Grady v Worcestershire Health Authority, Judge McEvoy upheld the decision of Deputy District Judge Williams, striking out the plaintiff's not insubstantial claim for want of prosecution following an accident at work in May 1988.
Proceedings were commenced on the deadline of the limitation period but the plaintiff's representatives failed to progress the action.
Four years later, with no exchange of evidence, the plaintiff changed solicitors. Inactivity, however, continued, and the defendant applied for strike out. The application was heard nine years after the incident.
Essentially, it was accepted at first instance, and thereafter at appeal, that there had been excessive delay by the plaintiff in progressing her claim. No excuses were put forward and the delay was therefore also held to be inexcusable.
With regard to the hurdle of evidential prejudice this was overcome as the focus of the claim was the plaintiff's recollection of a manual handling manoeuvre – the transfer of a patient from a standard bed to a special pressure-relieving mattress – which involved three other qualified nurses.
The plaintiff alleged that her colleagues had failed to carry their share of the patient's weight – a matter she had not complained of at the time.
Although witness statements had been subsequently obtained, the dimming of memories (including that of the plaintiff's) was held to be inevitable and prejudicial.
Further, the defendant health authority was found to be financially prejudiced by the delay in prosecution.
The disbandment of the Regional Health Authority on 1 April 1996 and the disappearance of the regional pool of money it provided meant that any award to the plaintiff would now have to come directly from the health authority's budget, that is money provided for the purpose of patient care and not the defence of personal injury actions.