Judge dismisses limitation defence for client who lost his leg 15 years after road accident

Dushal Mehta won approval this week from Mr Justice Bourne that his client, Lee Witcomb, may sue his previous legal team for not including future damages in his original personal injury claim, which settled in 2009.

Lee suffered serious leg and foot injuries in a road traffic accident in July 2002. He instructed Keith Park Solicitors (who in turn instructed Counsel, Peter Gregory) to pursue a claim against the insurers of the driver involved. Liability was admitted and full and final settlement of £150,000 was agreed in 2009.

As problems persisted, in January 2017, Lee was advised that the best option for treatment would be a below-knee amputation of his right leg. He underwent the surgery in 2017, which was understandably debilitating. Lee sought advice from his original lawyer as to whether he could reopen his case but was told he could not.

Lee subsequently instructed Dushal to claim against the original legal team for failing to advise him that provisional damages could, and should have, been claimed to allow for further damages if, as it transpired, he needed an amputation.

The claim also criticises the defendants for not obtaining expert evidence from a plastic surgeon that would have highlighted the future risk of amputation, provision for which would have allowed Lee to claim substantially more by way of damages to compensate him for the cost of prosthetics and other losses linked to the amputation.

The defendants argued that the claim was out of time and sought to have it struck out.

However, Mr Justice Bourne accepted that Lee's claim was not out of time and that section 14A of the Limitation Act 1980 applied to his case. Lee was not aware of the potential negligent advice until 2017 when amputation was first mentioned. Lee's case was that he did not have the requisite knowledge to bring a claim until after January 2017.

The Judge accepted that time to make a claim does not run from the negligent advice or omission (2009) but from when the claimant reasonably becomes aware that the advice that he received may be wrong.

DushaI instructed Jeremy Hyam QC of 1COR.

Read the case report in the Law Society Gazette.

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