Julie Midgley on the use of constructive knowledge. Julie Midgley is an associate at The Lewington Partnership.

My client health authority's case Rosanna O'Driscoll v Dudley Heath Authority came before the Court of Appeal on 30 April 1998.

The case is a reaffirmation of the principles of Spargo 1997, but has useful obiter comment on constructive knowledge which is helpful for health authorities which often have to face large but stale cerebral palsy claims.

The facts are these: Rosanna, who was born in 1970, believed from the age of 15 that her cerebral palsy was caused by clinical negligence at her birth; a disastrous decision was made by her and her family not to investigate the claim until she was 21 years old because of their mistaken belief she only came of age at that time; on her 21st birthday, her father wrote a letter claiming damages; and by that time the primary limitation period had expired; she could only overcome this if she could satisfy the court she did not have actual knowledge that she had a claim until three years before the writ was issued.

The court had to be satisfied that she had acted as the "reasonable person" would have done in the same circumstances, i.e. the constructive knowledge test. If she failed on either of these hurdles her claim would fail (the s. 33 discretion argument being abandoned by Rosanna).

Rosanna's legal team argued that Rosanna's belief that she had a claim was not "knowledge" and she only had such knowledge when she received her expert report later on.

On the issue of constructive knowledge, the team argued that Rosanna's severe disability meant she had been cocooned by her family and this had to be taken into account.

The judge at first instance agreed but the Court of Appeal reversed the decision, reaffirming the legal principles set out in Spargo. It re-asserted that Rosanna only had to know enough to believe that there was a possibility that her cerebral palsy was due to events at her birth. She had had this broad knowledge since the age of 15. Time would run from her 18th birthday. She was therefore statute barred at 21.

The court did not need to address the issue of constructive knowledge but Lord Justice Otton by way of obiter comment rejected the plaintiff's constructive knowledge argument stating that Rosanna was capable of making up her mind as well as the "reasonable person" notwithstanding her handicap.