Limitation – “Out of time” claim for missed cancer diagnosis allowed to continue.

September 13, 2023 Michael 0 Comments

Shaw v Maguire (Re Preliminary Issues) (Rev1) [2023] EWHC 2155 (KB) (25 August 2023)

A judge has allowed a claim to continue despite it being technically statute barred under the Limitation Act, being outside the 3 year limit.

This is the hearing of preliminary issues ordered by me on 18 November 2022. The preliminary issues identified for determination were;

i) Whether or not the claim was brought in accordance with the provisions of the Limitation Act 1980 ; and if not

ii) Whether it would be equitable to disapply the time limit under s. 33 of the Limitation Act 1980. [1]

Mr Shaw was born on 7 September 1952… He died on 9 January 2014 of metastatic melanoma at the age of 61. C is his widow, executor of his estate and sole dependant pursuant to the Fatal Accidents Act 1976. [2]

D reviewed cell samples taken from Mr Shaw’s back in October 2007. She reported the samples as being “benign”. Based upon this report, Mr Shaw was discharged without any follow up treatment. [3]

Unfortunately the lesion on Mr Shaw’s back returned in 2009. Further samples were taken and sent for histological examination. The subsequent report dated November 2009 confirmed the presence of malignant melanoma. The 2007 samples which had been examined by D were also sent for further review and a report at the end of November 2009 confirmed that the malignancy was present in the 2007 samples. [4]

Accordingly when all is put into the balance and taking account of all the circumstances I conclude that any prejudice to D is more than outweighed by the prejudice to C and that a fair trial can still take place with substantially the same evidence as would have been available had proceedings been served within the limitation period. Accordingly, it would be equitable to allow this action to proceed by directing that ss. 11 and 12 of the Limitation Act 1980 shall not apply to this claim. [78]

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Limitation – “Out of time” claim for missed cancer diagnosis allowed to continue. was last modified: September 13th, 2023 by Michael

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