Date of knowledge and Limitation – Lewin v Glaxo – Case Report



In cases concerning an allegation of bodily injury, time for the purposes of statutory limitation does not begin to run until the cause of action accrues or the date of knowledge of the alleged victim. The latter may be some months or years after the effluxion of the usual three year limitation period from the accrual of the cause of action. However it is rarely decades as it was in a recent case in the Queen’s Bench Division. In common with much of the extensive corpus of authority as to limitation, Keith Malcolm Lewin v Glaxo Operations Uk Ltd (Sued As Glaxosmithkline Unltd) [2016] EWHC 3331 (QB), turns on its own facts. It is however worthy of summary.

Here, upon hearing the trial of a preliminary issue on the subject, Mr Justice Goss found that the claimant’s claim was not statute-barred despite the claimant making complaint of treatment he received as long ago as 1973.

Some 44 years ago, the claimant underwent a diagnostic procedure during which Mydil was injected into his spine. It was held that the claimant’s date of knowledge arose when he was diagnosed as late as 2015 as suffering from post-Myodil adhesive arachnoiditis.

In the five or so years following the 1973 procedure, the claimant experienced persisting problems in his lumbar and cervical spine. This was investigated further in 1977 when it was considered that whilst the claimant may have had adhesive arachnoiditis, it could not be confirmed and further x-rays were unnecessary. The claimant’s problems continued during the 1990s, but it was not until 2007 when he developed severe left knee pain and thereafter other symptoms. An MRI scan in 20112 showed adhesions to his thoracic spine and the potential link between Myodil and the claimant’s condition was discussed. He underwent surgery in 2013, but it was not until March 2015 when a neurosurgeon concluded that the claimant suffered from post-Myodil adhesive arachnoiditis.

The claimant issued proceedings in October 2015 against the background of the fact that in the early 1990s group litigation had been pursued against the defendant in respect of Myodil in which settlements were agreed without any admission of liability. Over 4000 individuals had notified claims although, in the event, only 426 claims were proceeded with.

The Court was asked to determine the date upon which the claimant’s cause of action accrued; his knowledge for the purposes of section 14 of the Limitation Act 1980; and if the claim was statute-barred, whether the court’s discretion pursuant to section 33 of the same Act should be applied.

The court held that the cause of action accrued when the Myodil caused injury to the claimant, not the date it was injected. On the facts of this case this occurred around 2007.

The defendant argued that by the 1980s the claimant had constructive knowledge sufficient to commence time running (per section 14(3) of the 1980 Act): he knew by 1977 he had a serious back injury and that the possibility of arachnoidiis had been raised sufficient to prompt him to investigate. The claimant argued that no clear cause for his symptoms had been determined. This found favour with the Court which further held that even had the claimant drawn a link, it was not reasonable to have expected him to have investigated it further. It was held therefore that the claimant’s date of knowledge was when the neurosurgeon’s diagnosis in 2015.

Goss J went on to consider whether he would have allowed an extension of limitation in any event. He held that he would have done had it have been necessary on the grounds that the claimant had sustained a very serious injury and the main prejudice to the defendant would have been financial as the matters complained of had already been investigated.

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