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Tan Yang Chai


v
Kandang Kerbau Hospital Pte Ltd and others
[1997] SGHC 81
High Court Suit No 1140 of 1995
Goh Joon Seng J
13 February; 1 April 1997
Civil Procedure Striking out Whether plaintiffs claim time barred
Limitation of Actions When time begins to run Negligence When plaintiff
acquiring requisite knowledge that injury suffered was attributable to defendants
negligence was disputed question of fact Answer not clear and obvious and on the
contrary unarguable Section 24A(2)(b) Limitation Act (Cap 163, 1996 Rev Ed)
Facts
The plaintiff developed severe toxicity from drugs administered while
undergoing chemotherapy at the first defendants hospital. At the hospital, she
was treated with a drip injected on her right palm and the drip was administered
at the same spot for the next few days. She subsequently complained of pain in
the right hand and was transferred to the second defendants hospital where
minor surgery by way of incision and drainage of the site at her right hand was
performed. She was later transferred to the third defendants hospital for further
management of the right hand infection and other ailments. Due to the
infection, her right hand was amputated at the forearm level, and about a month
later on 8 March 1991, amputated again above the elbow. On 31 March 1994, the
plaintiffs solicitors received advice from another doctor that the plaintiffs
infection was caused by the needle insertion and that the infection could have
been prevented with adequate care while she was on the drip. The plaintiff filed
the present claim against all three defendants in July 1995. The first and third
defendants applied for the statement of claim to be struck out on the ground that
it was statute barred under s 24A(2)(b) of the Limitation Act (Cap 163, 1996 Rev
Ed) as the plaintiff knew that she had to bring the action by 8 March 1991 (when
the second amputation was performed) at the latest. The senior assistant
registrar granted the order and the plaintiff appealed.
Held, allowing the plaintiffs appeal:
(1) It was a question of fact whether the plaintiff had the requisite knowledge
that the infection in her arm was attributable to the insertion of the needle which
was then left in situ for five days, and not to inherent risk of chemotherapy: at
[26].
(2) On the evidence, the plaintiff was only advised as to the cause of the
infection which gave rise to the amputation of her right forearm on 31 March
1994. Whether she knew by 8 March 1991 that the infection was attributable in
whole or in part to the act or omission which was alleged to constitute
negligence or breach of duty on the part of the first and third defendants

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remained a disputed question of fact. It was too draconian to strike out her
action on an application under O 18 r 19 of The Rules of Court 1996 or under
the inherent jurisdiction of the court: at [28].
Case(s) referred to
Davis v Ministry of Defence The Times (7 August 1985) (folld)
Dobbie v Medway Health Authority [1994] 1 WLR 1234; [1994] 4 All ER 450;
(1994) 20 BMLR 61 (folld)
Nash v Eli Lilly & Co [1993] 1 WLR 782; [1993] 4 All ER 383; (1992) 14 BMLR 1
(refd)
Legislation referred to
Limitation Act (Cap 163, 1996 Rev Ed) s 24A(2)(b) (consd);
ss 24A, 24A(4), 24A(6)
Rules of Court 1996, The O 18 r 19
Limitation Act 1980 (c 58) (UK) ss 11, 11(4)(b), 14, 14(1), 14(3)
Bernard Sahagar (Jumabhoy Leong and Gay) for the plaintiff;
Kuah Boon Theng and Magdalene Chew (Khattar Wong & Pnrs) for the first and
third defendants.

1 April 1997
Goh Joon Seng J:
1
In or about June 1990, the plaintiff felt some lumps in her abdomen.
She consulted an outpatient polyclinic and was referred to the first
defendants hospital for further consultation.
2
In August 1990 an ultrasound was carried out on the plaintiffs
abdomen. She was then advised that she would have to undergo an
operation to remove a tumour in her ovaries.
3
On or about 6 September 1990, an operation to remove the right
ovary was carried out by Dr B L Tay, a servant or agent of the first
defendant. During the operation the cancerous mass was accidentally
ruptured with spillage of the cancerous fluid into the plaintiffs abdominal
cavity. The plaintiff was advised that this exposed her to increased risk of
recurrence of ovarian cancer if she did not undergo chemotherapy. She
accepted this advice and was given chemotherapy treatment on or about
25 December 1990 after assessment by Dr Goh Chee Leok, a servant or
agent of the first defendant.
4
On or about 7 January 1991, the plaintiff developed severe toxicity to
the drugs administered in the chemotherapy treatment and had high fever
and sore throat.
5
On or about 11 January 1991, the plaintiff sought treatment at the
second defendants hospital for her throat infection. On the same day she

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was admitted to the first defendants hospital and warded at its intensive
care unit for severe tonsillitis and leucopenia.
6
On 11 January 1991 at the first defendants hospital, the plaintiff was
treated with a drip injected on her right palm. The drip was administered at
the same spot for the next few days. On or about 15 January 1991 her right
hand was swollen and painful. Despite her frequent complaints to the
doctors and other staff of the first defendant, no action was taken to
alleviate the swell and the pain.
7
On or about 16 January 1991, at the first defendants hospital the
needle inserted on 11 January 1991 and left in situ since was removed. The
plaintiff was then sent to the second defendants hospital for treatment for
her tonsillitis. After the treatment, she was sent back to the first defendants
hospital where she was again put on drip on the right arm, this time
between the elbow and the wrist.
8
From 20 January 1991, the plaintiff developed high fever again. She
complained of pain on her right hand. On 28 January 1991, she was
transferred to the second defendants hospital where minor surgery by way
of incision and drainage of the site at her right hand was performed. A drip
was then administered on her left hand by the staff of the second defendant.
Blisters then developed on her right hand.
9
On 1 February 1991, the plaintiff was transferred to the Department
of Hand Surgery of the third defendants hospital for further management
of the right hand infection and severe marrow depression and ovarian
cancer.
10 On 9 February 1991, at the third defendants hospital, because of the
infection, the plaintiffs right hand was amputated at the forearm level. This
did not stop further infection and another amputation, this time above the
elbow, was performed on 8 March 1991. The plaintiff was eventually
discharged from the third defendants hospital on 22 March 1991.
11 After her discharge from further medical treatment, she consulted the
Legal Aid Bureau (LAB). LAB wrote to the three defendants for reports
on the plaintiffs injury and treatment and enquiring if the amputation
could have been avoided. The replies dating from June 1991 to
30 September 1992 dealt with the medical history and treatment given at
each of the three hospitals leading to the amputation. But they did not give
the cause of the infection that gave rise to the need for amputation.
12 On 8 December 1992 LAB sought the opinion of Prof Robert
W H Pho (Prof Pho), Professor in Orthopaedic Surgery, National
University of Singapore. Prof Pho advised on 15 February 1993 as follows:

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Madam Tan Yang Chai


I refer to your letters dated 8 December 1992 and 2 February 1993 on
the above patient.
I noted that this patient was admitted in August to Kandang Kerbau
Hospital for ovarian cancer. Post-operative chemotherapy was given.
She developed infection of the right hand which spread to involve the
proximal forearn [sic] and an above elbow amputation was performed
on 8 March 1991.
The following are my comments:
1
It is not uncommon to see patients who have received
chemotherapy which lower their immune response and
therefore make them susceptible to infection.
2
It is not uncommon that once infection developed in
immune-compromised patient it would be difficult to control
the infection despite adequate debridement and appropriate
antibiotic treatment.
3
From the information you enclosed, it was noted that
once the infection was noted this patient was then transferred to
the care of Dr Teoh Lam Chuan who is an experienced hand
surgeon at Singapore General Hospital. It was noted the patient
was seen in consultation with the bacteriologist Dr David Allen.
Despite this, the infection continued to spread up the arm. A
second opinion from Dr Tan Chong Tien, orthopaedic surgeon
was sought on 16 February 1991 and both Dr Teoh and Dr Tan
agreed that it would be in the best interest of the patient that an
above elbow amputation be carried out and this was performed
on 8 March 1991. Following amputation the wound slowly
healed and they were able to save the patients life. Patient
responded to hyperalimentations and recovered.
From the enclosed information, I am unable to make any comments
regarding negligence/misconduct on the part of any doctors or medical
institutions.

13 On 7 February 1994, the solicitors assigned by LAB to act for the


plaintiff filed Suit No 180 of 1994 against the third defendant. That writ was
never served but was allowed to lapse.
14 In the meantime on 31 March 1994, the plaintiffs solicitors received
the advice of Dr Teo Wee Sin, a surgeon practising in Kuala Lumpur. His
advice read:
Re: Mdm Tan Yang Chai
Thank you for your letter dated 6 January 1994 and the various
medical reports on the above named patient.
It appeared to me the infection in the right hand and subsequently the
right upper limb was caused by the needle insertion in her right hand.
The medical reports seem to indicate that all proper care and attention

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had been exercised after the infection was detected. Hence, it


appeared to me that if adequate care had been taken while the patient
was on a drip, there will be no infection.
The next question will be how do we define adequate care. Insertion
of a needle including the technique, the experience of the personnel,
the type of intravenous solution and the type and frequency of
injecting the intravenous drugs directly into the vein or through the
intravenous solution will have to be carefully analysed before any
negligence can be established.

15

On 24 May 1994, Dr Teo Wee Sin reverted further as follows:


Re: Medical Report on Mdm Tan Yang Chai
Thank you for your letter dated 4 April 1994.
This is to confirm that:
(1) The infection in the right hand was caused by the needle
insertion.
(2) The needle insertion was probably done adequately and
the infection was introduced after the needle was left in situ in
the right hand.
(3) Adequate care will include the regular inspection of the
needle insertion site, the care in changing the intravenous
solutions running through the needle and the length of time that
the needle was left in situ in the right hand.

16 On 3 July 1995, the plaintiffs solicitors filed and served the present
proceedings for damages for negligence on the part of the defendants
jointly and/or severally resulting in the loss of her right arm.
17 On 25 October 1995, the second defendant obtained an order that the
proceedings against it be struck out on the ground that at the material time,
Tan Tock Seng Hospital was managed, controlled and administered by the
Ministry of Health and not by the second defendant.
18 In the meantime, on 28 August 1996, the first and third defendant
(the remaining defendants) filed an application under O 18 r 19 and/or
under the inherent jurisdiction of the court for an order that the statement
of claim be struck out on the ground that the claim was statute barred under
the Limitation Act (Cap 163) s 24A(2)(b) as the plaintiff had the knowledge
required for bringing the action by the latest 8 March 1991. They relied on
sub-ss (4) and (6) of s 24A.
19 Order in terms of the remaining defendants application was granted
by the senior assistant registrar. The plaintiff appealed. I allowed the appeal.
The remaining defendants have appealed to the Court of Appeal. I now give
my reasons.
20 It was the plaintiffs contention that the earliest date on which she had
the knowledge required for bringing the action under s 24A was 31 March

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1994 when her solicitors received the advice of Dr Teo Wee Sin.
Section 24A reads:
(1) This section shall apply to any action for damages for negligence,
nuisance or breach of duty (whether the duty exists by virtue of a
contract or of a provision made by or under any written law or
independently of any contract or any such provision).
(2) An action to which this section applies, where the damages
claimed consist of or include damages in respect of personal injuries to
the plaintiff or any other person, shall not be brought after the
expiration of
(a) 3 years from the date on which the cause of action
accrued; or
(b) 3 years from the earliest date on which the plaintiff has the
knowledge required for bringing an action for damages in
respect of the relevant injury, if that period expires later than the
period mentioned in paragraph (a).
(3) An action to which this section applies, other than one referred
to in subsection (2), shall not be brought after the expiration of the
period of (a) 6 years from the date on which the cause of action
accrued; or
(b) 3 years from the earliest date on which the plaintiff or any
person in whom the cause of action was vested before him first
had both the knowledge required for bringing an action for
damages in respect of the relevant damage and a right to bring
such an action, if that period expires later than the period
mentioned in paragraph (a).
(4) In subsections (2) and (3), the knowledge required for bringing
an action for damages in respect of the relevant injury or damage (as
the case may be) means knowledge
(a) that the injury or damage was attributable in whole or in
part to the act or omission which is alleged to constitute
negligence, nuisance or breach of duty;
(b)

of the identity of the defendant;

(c) if it is alleged that the act or omission was that of a person


other than the defendant, of the identity of that person and the
additional facts supporting the bringing of an action against the
defendant; and
(d) of material facts about the injury or damage which would
lead a reasonable person who had suffered such injury or
damage to consider 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.

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(5) Knowledge that any act or omission did or did not, as a matter of
law, involve negligence, nuisance or breach of duty is irrelevant for the
purposes of subsections (2) and (3).
(6) For the purposes of this section, a persons knowledge includes
knowledge which he might reasonably have been expected to acquire

(a)

from facts observable or ascertainable by him; or

(b) from facts ascertainable by him with the help of


appropriate expert advice which it is reasonable for him to seek.
(7) A person shall not be taken by virtue of subsection (6) to have
knowledge of a fact ascertainable only with the help of expert advice so
long as he has taken all reasonable steps to obtain (and, where
appropriate, to act on) that advice.

21 Section 24A of our Limitation Act is in pari materia with s 11 read


with s 14 of the English Limitation Act (the English Act). Section 11 of the
English Act reads:
(1) This section applies to any action for damages for negligence,
nuisance or breach of duty (whether the duty exists by virtue of a
contract or of provision made by or under a statute or independently
of any contract or any such provision) where the damages claimed by
the plaintiff for the negligence, nuisance or breach of duty consist of or
include damages in respect of personal injuries to the plaintiff or any
other person.
(2) None of the time limits given in the preceding provisions of this
Act shall apply to an action to which this section applies.
(3) An action to which this section applies shall not be brought after
the expiration of the period applicable in accordance with
subsection (4) or (5) below.
(4) Except where subsection (5) below applies, the period applicable
is three years from
(a)

the date on which the cause of action accrued; or

(b)

the date of knowledge (if later) of the person injured.

(5) If the person injured dies before the expiration of the period
mentioned in subsection (4) above, the period applicable as respects
the cause of action surviving for the benefit of his estate by virtue of
section 1 of the Law Reform (Miscellaneous Provisions) Act 1934 shall
be three years from
(a)

the date of death; or

(b) he date of the personal representatives knowledge;


whichever is the later.
(6) For the purposes of this section personal representative
includes any person who is or has been a personal representative of the
deceased, including an executor who has not proved the will (whether

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or not he has renounced probate) but not anyone appointed only as a


special personal representative in relation to settled land; and regard
shall be had to any knowledge acquired by any such person while a
personal representative or previously.
(7) If there is more than one personal representative, and their dates
of knowledge are different, subsection (5)(b) above shall be read as
referring to the earliest of those dates.

Section 14 of the English Act reads:


(1) In sections 11 and 12 of this Act references to a persons 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; and

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


act or omission which is alleged to constitute negligence,
nuisance or breach of duty; and
(c)

the identity of the defendant; and

(d) if it is alleged that the act or omission was that of a person


other than the defendant, the identity of that person and the
additional facts supporting the bringing of an action against the
defendant;
and knowledge that any acts or omissions did or did not, as a matter of
law, involve negligence, nuisance or breach of duty 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 persons knowledge includes
knowledge which he might reasonably have been expected to acquire

(a)

from facts observable or ascertainable by him; or

(b) from facts ascertainable 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 subsection with knowledge of
a fact ascertainable only with the help of expert advice so long as he has
taken all reasonable steps to obtain (and, where appropriate, to act on)
that advice.

22 The law on s 14(1) of the English Act has been aptly summarised by
Michael A Jones on Medical Negligence (1996) pp 499500:
By s 14(1) references to a persons date of knowledge are references to
the date on which he first had knowledge of the following facts:

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(a)

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that the injury in question was significant; and

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


act or omission which is alleged to constitute negligence,
nuisance or breach of duty; and
(c)

the identity of the defendant; and

(d) if it is alleged that the act or omission was that of a person


other than the defendant, the identity of that person and the
additional facts supporting the bringing of an action against the
defendant
These provisions are conjunctive: if the plaintiff does not have the
knowledge specified in any of these paragraphs then he does not have
knowledge for the purpose of starting the limitation period running
(though para (d) only applies in certain circumstances). On the other
hand, s 14(1) is also exhaustive: no knowledge of any further facts is
required.

23 On knowledge required under ss 11 and 14, Sir Thomas Bingham MR


(as he was then) in Dobbie v Medway Health Authority [1994] 4 All ER 450
at 455; (1994) 20 BMLR 61 at 6566 stated:
The effect of ss 11(4)(b) and 14(1)(a) is to postpone the running of
time until the claimant has knowledge of the personal injury on which
he seeks to found his claim. That is the injury in question. The word
knowledge should be given its natural meaning (Davis v Ministry of
Defence [1985] CA Transcript 413). As Lord Donaldson of
Lymington MR said in Halford v Brookes [1991] 3 All ER 559 at 573,
[1991] 1 WLR 428 at 443:
In this context knowledge clearly does not mean know for
certain and beyond possibility of contradictions. It does,
however, mean know with sufficient confidence to justify
embarking on the preliminaries to the issue of a writ, such as
submitting a claim to the proposed defendant, taking legal and
other advice and collecting evidence.
This test is not in my judgment hard to apply. It involves ascertaining
the personal injury on which the claim is founded and asking when the
claimant knew of it. In the case of an insidious disease or a delayed
result of a surgical mishap, this knowledge may come well after the
suffering of the disease or the performance of the surgery. But more
usually the claimant shows that he has suffered personal injury as soon
or almost as soon as he does so.
Time does not begin to run against a claimant until he knows that the
personal injury on which he founds his claim is significant within the
definition in s 14(2). That gives rise to no issue in this appeal.
The effect of ss 11(4)(b) and 14(1)(b) is to postpone the running of
time until the claimant has knowledge that the personal injury on
which he founds his claim was wholly or partly attributable to the act
or omission of the defendant on which his claim in negligence is

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founded. Attributable to was construed by May LJ in Davis to mean


capable of being attributed to and not caused by, and I see no reason
to question that conclusion. It cannot plausibly be suggested that the
words act or omission import any requirement that such act or
omission should be actionable or tortious, since that would stultify the
closing words of s 14(1) and would moreover flout the
recommendation on which the legislation was admittedly founded. In
Wilkinson v Ancliff (BLT Limited) [1986] 3 All ER 427 at 436, [1986]
1 WLR 1352 at 1362 reference was made to a submission of counsel
based on the use of the words act or omission rather than conduct in
s 14(1)(b). I do not understand the court to have accepted that
submission. But it is customary in discussing tortious liability to refer
to acts and omissions, and I do not think the meaning of s 14(1)(b)
would be any different had the reference been to conduct. Time starts
to run against the claimant when he knows that the personal injury on
which he founds his claim is capable of being attributed to something
done or not done by the defendant whom he wishes to sue. This
condition is not satisfied where a man knows that he has a disabling
cough or shortness of breath but does not know that his injured
condition has anything to do with his working conditions. It is satisfied
when he knows that his injured condition is capable of being attributed
to his working conditions, even though he has no inkling that his
employer may have been at fault.

24 Knowledge would include constructive knowledge in circumstances


falling under our s 24A(6) which is almost identical to s 14(3) of the English
Act.
25 The remaining defendants contended that in view of the plaintiffs
experiences in the hospitals recounted in the statement of claim herein, she
must have known without having to rely on expert medical opinion by
8 March 1991 that her amputation was attributable to her medical
treatment. On this, I find the dicta of Purchas LJ in Nash v Eli Lilly & Co
[1993] 4 All ER 383 at 395; (1992) 14 BMLR 1 at 12 helpful:
whether a claimant has knowledge depends both upon the
information he has received and upon what he makes of it. If it appears
that a claimant, while believing that his injury is attributable to the act
or omission of the defendant, realises that his belief requires expert
confirmation before he acquires such a degree of certainty of belief as
amounts to knowledge then he will not have knowledge until that
confirmation is obtained.

26 Did the plaintiff have the requisite knowledge that the infection in her
arm was attributable to the insertion of the needle which was then left in
situ for five days, and not to inherent risk of chemotherapy? This is a
question of fact.
27 In Davis v Ministry of Defence reported in The Times of 7 August
1985, the plaintiff was employed by the defendant between 1955 and 1971.

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Up to 1969 he worked as a welder. At that time he contracted a localised


attack of dermatitis. He suffered further similar outbreaks between then
and August 1971 when he had a serious generalised outbreak and left the
defendants employment. The plaintiffs general practitioner had always
held the view that the skin condition was due to contact with dust at the
plaintiffs place of work. The plaintiff issued a writ on 29 October 1973.
That writ was never served and it lapsed. On 10 November 1981, a fresh
writ was issued. The statement of claim served on 8 June 1982 included a
plea that prior to 10 November 1978 the plaintiff was unaware that the
general outbreak and his subsequent symptoms were attributable to the
defendants previously pleaded negligence and or breach of statutory duty
and that in consequence the claim was not statute barred by virtue of
s 11(4)(b) of the English Act. A defence was served contending that the
claim was statute barred. The defendant then applied to have the action
struck out under the inherent jurisdiction of the court. The application was
dismissed by the Master whose decision was reversed by the judge on
appeal. The plaintiff thereupon appealed to the Court of Appeal. The report
on the judgment of May LJ (with whom Sir Edward Eveleigh agreed) in
allowing the appeal read:
The pertinent question was upon what date did the plaintiff first know
that his dermatitis was attributable in whole or in part to his
employers failure to provide him with safe working conditions?
Although in one context attributable could be synonymous with
caused by, that was not its principal meaning. Section 14(1)(b)
required one to ask when the plaintiff first knew that his dermatitis was
capable of being attributed to his working conditions with the
defendants between 1955 and 1969, bearing in mind that by s 14(3)(b)
the plaintiff was deemed to know facts which he could ascertain from
expert medical or legal advice which it was reasonable for him to seek.
As the defendants application was summarily to strike out the action
in limine the court should only accede to it if the answer to the above
question was clear and obvious and the contrary unarguable.
Although counsel for the plaintiff did try to define knowledge his
Lordship thought that the court should decline to do so. Knowledge
was an ordinary English word with a clear meaning to which one must
give full effect: reasonable belief or suspicion was not enough.
From the plaintiffs affidavit alone it would not be difficult to reach the
conclusion that he did know that his symptoms were capable of being
attributable to his conditions at work. But his affidavit went on to
relate that his solicitors had obtained various medical reports and had
taken counsels opinion twice.
In the result the plaintiff was advised and accepted that there were no
reasonable grounds for his continuing his original claim.
The plaintiff had always believed that his dermatitis was due to his
employers fault and that he had a good claim against them.

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However, it was clear that he was advised that he did not, and the
combined state of mind of the plaintiff himself, as a layman, and that of
his medical and legal advisers, which must be attributed to him by
s 14(3), could not so surely be said to have been such that he and they
knew, prior to 10 November 1978, that it was capable of being
attributed to the plaintiffs working conditions. It was at least well
arguable that the view of the plaintiffs medical and legal advisers in the
early 1970s was that his dermatitis could not be so attributed, but was
constitutional.
It would be wrong to take the draconian step in striking out the
plaintiffs claim at this stage and that appeal would be allowed.

28 Turning now to the pleaded facts in the statement of claim before this
court, there is clear evidence that the plaintiff was advised of the cause of
the infection giving rise to the amputation of her right forearm on
31 March 1994. Whether she had the requisite knowledge by 8 March 1991
that the infection was attributable in whole or in part to the act or omission
which is alleged to constitute negligence or breach of duty on the part of the
remaining defendants remains a disputed question of fact. The answer to
this question contended for on behalf of the remaining defendants is not
clear and obvious and the contrary unarguable. It would therefore be too
draconian to strike out the plaintiffs action on an application under O 18
r 19 or under the inherent jurisdiction of the court. Accordingly I allowed
the appeal with costs reserved leaving the issue of limitation to be decided
by the trial judge.
Headnoted by Chong Chin Chin.