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Injury Claim Success 40 Years After the Event
The law changes over the years, and a recent case dealt with a claim for injuries caused when a man was exposed to a substance during medical exploration of his back in 1973 when he was 15 years old. Product liability laws have changed since that time and now a claim could be brought without question under the Consumer Protection Act 1987, which imposes 'strict liability' on the supplier in such cases. In this case, however, the action was for damages under the law of tort, which has time limits imposed for making a claim.
The circumstances were as follows. In the days before MRI and CT imaging were established, when a detailed spinal examination had to be conducted, the procedure involved injecting a 'contrast medium' so that the X-rays could show fine enough detail for a diagnosis to be made. The man had such a procedure and the result was a chronic inflammation of the membranes surrounding the spinal cord, which has left him paralysed.
He argued that the dangers of using the substance had not been properly explained to him, and that it had been insufficiently tested and should only have been used 'in extremis'. Litigation by others injured by the substance was settled in 1995.
The manufacturer of the contrast medium argued that the claim was 'out of time' and could not be brought, and that there was a prejudice against them because many of the potential witnesses have died and many of the relevant records no longer exist. The Limitation Act 1980 limits the bringing of such a claim to three years after the cause of the injury or the person injured becoming aware of the injury, if later. The court interprets 'being aware' as the date by which 'a reasonable man' could be expected to have been aware of the cause of the injury. The court has the right of discretion over deciding when that date is to be fixed and it is for the defendant to prove, on a balance of probabilities, the date on which the claimant acquired sufficient knowledge to justify a claim.
The man was told in 1977 that he may be suffering from arachnoiditis, but it was not until 1993 that an MRI scan indicated that he had suffered degenerative changes to his spine. His back pain issues continued but he did not connect this with his treatment in 1973 until further issues caused another MRI scan to be done in 2012, when a consultant informed him of the link between the use of the contrast medium and adhesive arachnoiditis. By 2013 his condition had worsened to the point that he needed a wheelchair. He claimed that the 2012 consultation was the date of his knowledge of the cause of the action. He issued proceedings against the manufacturer of the contrast medium within three years of that consultation.
On the particular facts of the case, the High Court decided that the action could go ahead. The defendant had failed to provide sufficient evidence that 2012 was not the date on which the man acquired the knowledge necessary on which to base his claim.
Sometimes the cause of an injury may not become evident for many years. The time limit for bringing a damages claim starts to run from the date at which you could reasonably be expected to have become aware, but advice should be taken as soon as suspicions are aroused.