Mossa v Wise [2017] EWHC 2608 (QB) (19 October 2017) ARB v IVF Hammersmith Ltd [2017] EWHC 2438 (QB) (06 October 2017)

This is an appeal brought by D against an Order made on 10 May 2017 whereby C was allowed to pursue her claim for personal injury pursuant to section 33 of the Limitation Act 1980 (‘the Act’) and D was ordered to pay C’s costs of the determination of limitation as a preliminary issue. (paragraph 1)

D was a consultant gynaecologist… In January 2007, he performed surgery on C to treat her urinary stress incontinence. He used TVT Secur Gynaecare vaginal tape, a product manufactured by Johnson & Johnson. (paragraph 3)

C’s case that she initially had an improvement in her symptoms, she suffered a relapse after about 6 months. She then developed increasing pain and other unpleasant symptoms. In July 2011 she suffered sudden heavy vaginal bleeding and pain. Investigations revealed that she had suffered erosion of the TVT tape into the vagina. She underwent corrective surgery in September 2011. Subsequently, in January 2013, she had a hysterectomy and colposupension procedure. She has ongoing residual symptoms. (paragraph 4)

On 2 September 2014, C commenced a product liability claim against Johnson & Johnson. That followed from her hearing of a case in Scotland involving the use of TVT tape which led her to make enquiries and discover that the same product had been used in her case. She instructed solicitors and an expert medical report was obtained in December 2014. Following consideration of this evidence in conference with counsel, a claim was issued against D on 17 July 2015, alleging that he failed to obtain proper informed consent to the procedure. It is said that he failed to provide adequate information about the TVT product and the procedure used and that he failed to advise properly as to alternative treatment options. (paragraph 5)

D said that the causes of action in tort or contract accrued in January 2007 and that C’s date of knowledge was no later than 22 August 2011, therefore the claim was statute barred. D applied for limitation to be tried as a preliminary issue and directions to that effect were given. (paragraph 7)

C contended that her date of knowledge was not until December 2014, when the expert medical evidence was obtained. In the alternative, she asked the court to exercise its discretion pursuant to section 33 of the Act to allow the action to proceed. (paragraph 8)

…the claim was brought outside the limitation period as provided for by sections 11 and 14 of the Act. (paragraph 10)

…the Master went on to consider the exercise of his discretion under section 33 of the Act… looking at all the circumstances and balancing the prejudice on each side, it would be equitable to allow the claim to proceed. (paragraph 11)

What is required under section 33(1) is a balancing of the relative prejudice a decision either way would cause to each party… (paragraph 27)

…appeal dismissed both on the substantive [limitation] issue and in relation to costs