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31 Medico-Legal J. 1 (1963)

handle is hein.journals/medlgjr31 and id is 1 raw text is: EDITORIAL DENIAL OF JUSTICE THE recent House of Lords case of Cartledge and Others v. Jobling and Sons Ltd., (The Times, January 18, 1963), draws attention to the injustices that can arise in certain cases by reason of the Limitation Acts. In that case, seven steel dressers and the widows of two others who had died who had been employed at the factory of the defendants, appealed from the decision of the Court of Appeal, [1962] I Q.B. 189, which had affirmed the decision of Mr. Justice Glyn-Jones. The trial judge held that the plaintiffs' claims for damages for negligence or breaches of statutory duty, which they alleged had caused their pneumoconiosis, were statute barred by section 2 of the Limitation Act, 1939. The employers had denied any breach of duty and pleaded section 2 (i) of the Limitation Act, 1939. The trial Judge found that the disease had been caused by the employers' breach of statutory duty, but that as the causes of action had accrued in each case more than six years before the issue of the writs, the actions failed. The period of limitation has now been reduced in the case of personal injuries to three yearsby the Law Reform (Limitation of Actions &c.) Act, 1954, but this reduction had not taken place when the facts material to this action arose. A committee was appointed to consider and report whether any alteration is desirable in the law relating to the limitation of actions in cases of personal injury where the injury or disease giving rise to the claim has not become apparent in sufficient time to enable proceedings to be begun within three years from the inception of such injury or disease. This committee was appointed in January, 1961, with Mr. Justice Edmund Davies as its Chairman, and its report was published in September, 1962 (1962 Cmnd. 1829), which was between the decision of the Court of Appeal and that of the House of Lords. The Committee discussed the case of Cartledge v. Jobling and they did consider a solution restricted to a list of diseases, but they rejected it. In a careful and well reasoned argument they make the following suggestions: (a) an injured person should not be liable to have his claim defeated by the operation of the Limita- tion Act if he satisfies the court that- (i) he could not reasonably have been expected to discover the existence or cause of his injury in time to start proceedings within the limitation period; and (2) he has started those proceedings within twelve months of the earliest date on which he could reasonably have been expected to make that discovery; (b) no person should be able to take advantage of this relaxation of the three-year rule unless he has first obtained (on an ex parte application supported by evidence on oath) the leave of a judge to sue out of time. Whether the reform should take the exact form suggested by the committee is perhaps arguable, but that there should be some change in the law on this subject is beyond doubt. As Lord Pearce said in his speech in giving judgment in the House of Lords: It was to be hoped therefore that in the future their Lordships would not have to deny relief in such cases as these to plaintiffs, who, having good causes of action, had lost them through no fault of theirs. THE OVERLOOKED SWAB AT page 40 we reproduce a memorandum jointly prepared by the Medical Defence Union and the Royal College of Nursing on swabs and instruments left in the body after operations. The number of instances in which this has occurred has increased