Van der Merwe v Arnott's Biscuits Limited

The case of Van der Merwe v Arnott’s Biscuits Limited involves the plaintiff, who was employed as a laundry processor, seeking an extension of the limitation period for her claim for damages resulting from an injury sustained at work. The plaintiff was allegedly injured on 19 October 2001 while removing a load of heavy workman's overalls from an industrial washing machine. Initially, she consulted her general practitioner who diagnosed her with sciatica. After lodging a claim for Workers Compensation which was accepted, she subsequently consulted a neurosurgeon who provided a conflicting diagnosis, stating that there was nothing wrong with her and that her condition was not attributable to an aggravation of a pre-existing condition. Despite this, the plaintiff continued to suffer from back pain and was eventually referred to another consultant neurosurgeon in May 2007, who diagnosed her condition and recommended surgery, linking it back to the 2001 incident. The plaintiff first consulted solicitors regarding a potential claim in October 2007.

The central legal issue before the court was whether the limitation period for the plaintiff’s claim should be extended. The plaintiff applied under section 31 of the Limitations of Actions Act for the limitation period to be extended, arguing that she was not aware of the full extent of her injury until the second neurosurgeon's diagnosis in May 2007. The court had to consider whether the circumstances warranted an extension of the limitation period, taking into account the conflicting medical advice and the plaintiff's lack of knowledge regarding the full extent of her injury.

The court held that the limitation period should be extended to 29 May 2008, the date on which the plaintiff first consulted the second neurosurgeon. The court reasoned that the plaintiff was not aware of the full extent of her injury until this point and, as such, could not be expected to commence proceedings within the standard limitation period. The court found that the conflicting medical advice and the plaintiff’s ongoing symptoms warranted an extension of the limitation period. Additionally, the court awarded the plaintiff’s costs of and incidental to this application against the first defendant, with no order as to costs against the second defendant.

In summary, the court granted the plaintiff's application for an extension of the limitation period and ordered that the period be extended to 29 May 2008. The plaintiff’s costs of and incidental to the application were awarded against the first defendant, with no order as to costs against the second defendant.