Court allows over-21 birth injury case

22nd, August 2008

The High Court has used its discretion to allow a disabled man to sue the hospital he was born at, even though he is technically out of time.

27-year-old Jonathon Khairule has cerebral palsy and is severely disabled. He is in a wheelchair, and communicates by typing on a keyboard with his nose. Despite his severe disability he has successfully mounted a challenge against Tameside General Hospital in Ashton under Lyne after the High Court used it’s discretion to waive the usual limitation period for his particular case.

Currently, legislation dictates that claims for personal injury must be brought within three years. For children this three year period may start the age of 18 (when they reach adulthood), meaning they have until their 21st birthday to make a claim.

Mr Khairule wasn’t aware of this rule and didn’t seek legal advice until 18 months after his 21st birthday. Some law firms refused to take on his case because it rested on whether the court would use it’s discretion to allow legal action to progress.

Mr Khairule explained: “I knew I had cerebral palsy from birth.
It wasn’t until I was in my early 20s that I started to do some investigating. I did not know if I would be able to claim compensation, I just wanted answers.

"I contacted various legal firms but no-one wanted to touch my case because I was over 21 and they told me I was technically out of time to bring a claim for a birth injury. This was a complete shock to me as I had no idea of any time limit.”

His lawyer Lindsay Gibb explained: “Jonathon first contacted us in February 2004, more than 18 months after his 21st birthday which meant technically he was out of time to bring a claim.

“However, the law does give the Court the discretion to disapply the three year rule where the Judge is satisfied it would be equitable to do so and that a fair trial can still take place.

"Having gained the necessary medical evidence and financial support for Jonathon from the legal services commission, we decided to mount a challenge on his behalf and ask the Court to use its discretion to allow his claim to proceed."

Court allows over-21 birth injury case

The High Court has used its discretion to allow a disabled man to sue the hospital he was born at, even though he is technically out of time.

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