Legal practitioners have a solution to that; plead every conceivable item of loss and, later, waive those that do not apply. Section 10 prevents this; it requires that “full” particulars be pleaded. This implies that the plaintiff cannot issue proceedings until all these losses are accrued and known, or, as mentioned, that items not pleaded cannot later be claimed.
Litigation needs an engine; that is, something must drive the process forwards. For a personal injury victim that engine is, normally, the persistent fact of the injury. From the medical point of view this will imply difficulty coming up with a prognosis. A prognosis is a doctor’s estimate of the progress (or lack of it) expected of the patient.
To be useful, on issuing the proceedings, it is essential that the Statute of Limitations period not have expired. That period, for personal injury, is two years, measured from the date of the cause of action. Generally, there is no difficulty ascertaining the date of the accrual of the cause of action. For a road accident victim, say, it is the date of the accident.
Accidents are confusing. Meeting the unexpected (or just the unwelcome) is disturbing. Many personal injury victims have difficulty orienting themselves after an accident. For some, the difficulties are greater than others. Some accidents are more unexpected than others. Road accidents are relatively common, whereas to be hit by an object falling from a defective building is very unusual.
The main problem with defective DePuy hips is the design failure. The hip will fail mechanically. This is a serious matter. Instead of ease of movement, the hip will hinder movement. Movement will be painful, probably noisy, and anything but smooth.
It is essential to know that the Injuries Board has no role in the DePuy hip scandal. If a victim lodges an application to the Injuries Board, it is a mistake. The Injuries Board will, in due course, reject it. Worse than that, time will continue to run against the plaintiff while the application is being made and considered. In short, it is a waste of valuable and scarce time.
There are no extensions of time available for victims of medical negligence, unlike victims of road traffic accidents who get extensions of time in the Personal Injuries Assessment Board system.
The liability, in law, for this is clear. The services delivered to these patients were subject to the implied terms of the Sale of Goods and Supply of Services Act 1980. The production of Pandemrix triggered the terms of the Liability for Defective Products Act 1990.
That’s the theory; but, if there are no lawyers in DEPUYLAND, who is to alert the patients to the existence of their right to make a claim?