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Is it too late to claim for my personal injury?

Posted by : Michael Shiers

People often wonder how late is too late to make a personal injury claim.

An interesting case was dealt with by the High Court just before Christmas, in relation to the x-ray contrast agent, Myodil.

spine xrayKeith Lewin was born in 1957.  He suffered from a painful back and in 1973, when he was aged 15, he underwent a procedure called a ‘Myelogram’.  This was a fairly common procedure used between the 1950s and the 1980s before the advent of CT and MRI scans.  It involved injecting a drug, in this case Myodil, into the spine in order to create a better X-Ray result.  It is now known that the injection of Myodil into the spine creates unacceptable risks and its use was phased out in the 1980s.

Mr Lewin sued the pharmaceutical company, Glaxo, on the basis that the drug really should not have been in use by 1973 or if it was it should only be in certain cases which really needed it and he should have been given more of a warning about what could go wrong.  It is fair to say that there were no major problems arising from the injection for a number of years, although Mr Lewin did suffer from a bad back with its usual ups and downs.

He soldiered on and things took a turn for the worse in November 2007 when he suffered severe pain in his knee.  Again, this was investigated and in September 2012 he had an MRI scan which showed a problem with his spine.

He was referred to a Neurosurgeon who told Mr Lewin for the first time that this could well be connected to the injection of the Myodil some 39 years earlier!

Put simply, the law of limitation provides that a Claimant must bring proceedings within 3 years of the date upon which he knew or ought to have known that he was suffering from a significant injury due to something which the Defendant has done wrong.

The first thing which the Judge had to decide was when Mr Lewin had suffered a ‘significant injury’.  The Judge came to the conclusion that the first time there was a significant injury was October 2007 when the Claimant sustained severe pain in his knee referred from his back.

The next matter the Judge had to decide was when Mr Lewin ought to have made the connection with the Myodil injection.  The Courts apply an objective test.  In other words, it was irrelevant that Mr Lewin did not make the connection until 2012, the question was should he have made the connection upon further investigation and consulting experts.

The Judge felt that as a young man Mr Lewin had been told that he had a bad back and no one really knew what was wrong with him and that it should settle down in time.  He therefore felt that there was nothing seriously wrong with him. He was not obliged to look into it any further.

Mr Lewin had read something about the Myodil litigation in the early 1990s. However, the Judge accepted that even though Mr Lewin knew about this he did not connect that with his own problem as his condition had not significantly changed for a number of years at that time and so there was nothing which would have led him to investigate this further.  The Judge therefore found the Claimant’s date of knowledge was when he was told of the connection by the Neurosurgeon in 2012.  As he had issued proceedings in 2015 within 3 years the Claim was brought in time.

The Judge then went on to say that even if he was wrong on that he would have extended the time limit at his discretion under Section 33 of the Limitation Act.

The case is a good example of how it is possible to sue for events which have happened a number of years ago.  These cases are never easy but it is always worth getting some initial advice from a specialist Personal Injury lawyer.

Nash & Co will always provide such initial advice free of charge and without any obligation.

Mike Shiers is a specialist Personal Injury Solicitor and Partner (Non-LLP Member) at Nash & Co in Plymouth