Neutral Citation Number: [2014] EWCA Civ 717
Case No: B3/2013/1384
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE, QUEEN'S BENCH DIVISION
MR JUSTICE NICOL
HQ12XO1990
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 23/05/2014
Before :
LORD JUSTICE JACKSON
LORD JUSTICE LEWISON
and
LADY JUSTICE MACUR
--------------------Between :
GEORGE WALTER COLLINS
- and (1) THE SECRETARY OF STATE FOR BUSINESS
INNOVATION AND SKILLS
(2) STENA LINE IRISH SEA FERRIES LIMITED
Appellant
Respondents
----------------------------------------Mr Simon Kilvington (instructed by Corries Solicitors Ltd) for the Appellant
Mr Colin Nixon (instructed by DAC Beachcroft LLP) for the First Respondent
Mr David Platt QC and Miss Claire Toogood (instructed by Berrymans Lace Mawer LLP)
for the Second Respondent
Hearing date: 9th May 2014
---------------------
Approved Judgment
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Judgment Approved by the court for handing down.
Lord Justice Jackson:
1.
This judgment is in seven parts, namely:
Part 1. Introduction
paragraphs 2 to 9
Part 2. The facts
paragraphs 10 to 19
Part 3. The present proceedings
paragraphs 20 to 24
Part 4. The appeal to the Court of Appeal
paragraphs 25 to 28
Part 5. The date of constructive knowledge
paragraphs 29 to 51
Part 6. The application of section 33 of the
Limitation Act 1980
paragraphs 52 to 76
Part 7. Executive summary and conclusion
paragraphs 77 to 79
Part 1. Introduction
2.
This is an appeal against a decision of Mr Justice Nicol that the claimant’s personal
injury claim is statute barred. All the breaches of duty which the claimant alleges
occurred between 1947 and 1967. The two issues in this appeal are the date of
constructive knowledge under section 14 of the Limitation Act 1980 and whether the
judge ought to have extended time under section 33.
3.
The principal question of law in this appeal is whether and how the judge was entitled
to take into account the delay occurring between 1947 and mid-2003, which was the
date of constructive knowledge on the judge’s analysis. Counsel on both sides
described this question as an issue of seminal importance in relation to long tail
industrial disease claims. This question has been addressed in earlier authorities, but
perhaps not as fully as one might expect.
4.
The claimant, George Collins, is a former dock worker. His solicitors are Corries, a
firm specialising in personal injury claims. The first defendant, the Secretary of State
for Business, Innovation and Skills, is responsible for the liabilities of the National
Dock Labour Board (“NDLB”), a body which no longer exists. The second defendant
is a stevedoring company which operated at London Docks between 1947 and 1967.
It was then called Scruttons Ltd (“Scruttons”).
5.
I shall refer to the Limitation Act 1980 as “the Limitation Act” or “LA”.
6.
Section 11 (4) (b) of the Limitation Act provides that a personal injury action shall not
be brought more than three years after the date of knowledge.
7.
Section 14 of the Limitation Act provides:
“Definition of date of knowledge for purposes of sections 11
and 12.
Judgment Approved by the court for handing down.
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(1) Subject to subsection (1A) below, in sections 11 and 12 of
this Act references to a person’s date of knowledge are
references to the date on which he first had knowledge of the
following facts—
(a) that the injury in question was significant; and
(b) that the injury was attributable in whole or in part to the
act or omission which is alleged to constitute negligence,
nuisance or breach of duty; and
(c) the identity of the defendant; and
(d) if it is alleged that the act or omission was that of a
person other than the defendant, the identity of that person
and the additional facts supporting the bringing of an action
against the defendant;
and knowledge that any acts or omissions did or did not, as a
matter of law, involve negligence, nuisance or breach of duty is
irrelevant.
….
(3) For the purposes of this section a person’s knowledge
includes knowledge which he might reasonably have been
expected to acquire —
(a) from facts observable or ascertainable by him; or
(b) from facts ascertainable by him with the help of medical
or other appropriate expert advice which it is reasonable for
him to seek;
but a person shall not be fixed under this subsection with
knowledge of a fact ascertainable only with the help of expert
advice so long as he has taken all reasonable steps to obtain
(and, where appropriate, to act on) that advice.”
I refer to knowledge which a person ought to have acquired under section 14 (3) as
“constructive knowledge”.
8.
Section 33 of the Limitation Act provides:
“Discretionary exclusion of time limit for actions in respect
of personal injuries or death.
(1) If it appears to the court that it would be equitable to allow
an action to proceed having regard to the degree to which—
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(a) the provisions of section 11 or 11A or 12 of this Act
prejudice the plaintiff or any person whom he represents;
and
(b) any decision of the court under this subsection would
prejudice the defendant or any person whom he represents;
the court may direct that those provisions shall not apply to the
action, or shall not apply to any specified cause of action to
which the action relates.
….
(3) In acting under this section the court shall have regard to all
the circumstances of the case and in particular to—
(a) the length of, and the reasons for, the delay on the part
of the plaintiff;
(b) the extent to which, having regard to the delay, the
evidence adduced or likely to be adduced by the plaintiff or
the defendant is or is likely to be less cogent than if the
action had been brought within the time allowed by section
11 by section 11A or (as the case may be) by section 12;
(c) the conduct of the defendant after the cause of action
arose, including the extent (if any) to which he responded to
requests reasonably made by the plaintiff for information or
inspection for the purpose of ascertaining facts which were
or might be relevant to the plaintiff’s cause of action against
the defendant;
(d) the duration of any disability of the plaintiff arising after
the date of the accrual of the cause of action;
(e) the extent to which the plaintiff acted promptly and
reasonably once he knew whether or not the act or omission
of the defendant, to which the injury was attributable, might
be capable at that time of giving rise to an action for
damages;
(f) the steps, if any, taken by the plaintiff to obtain medical,
legal or other expert advice and the nature of any such
advice he may have received.”
I shall refer to the factors set out in section 33 (3) as “criterion (a)”, “criterion (b)” and
so forth.
9.
After these introductory remarks, I must now turn to the facts.
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Judgment Approved by the court for handing down.
Part 2. The facts
10.
The claimant was born on 8th October 1924 and is now aged 89. He has led an active
and varied life. During the Second World War he served as a driver in the army. This
included service in France and Germany immediately after the D-Day landings.
11.
Between 1947 and 1967 the claimant worked as a dockworker at London Docks. He
was based at Tilbury Dock, but sometimes went to other London Docks. Throughout
this period the claimant was registered with NDLB and he worked for a number of
different stevedoring companies. He recalls that one of those companies was
Scruttons.
12.
On occasions the claimant assisted in unloading cargos of asbestos. He recalls that
the asbestos was usually grey/white, but occasionally it was blue. The asbestos was
held in hessian sacks.
13.
In about 1967 the claimant became a full-time crane driver. He continued working at
London Docks, but his exposure to asbestos came to an end. The claimant remained
working as a crane driver until he reached the age of 60 in 1984. He then retired.
14.
In early 2002 the claimant became unwell. He suffered weight loss, shortness of
breath and other symptoms. He attended the Respiratory Medicine Clinic at Basildon
Hospital. In May 2002 Dr Mukherjee, the consultant respiratory physician, diagnosed
the claimant as suffering from inoperable lung cancer. He referred the claimant to the
Oncology Clinic for palliative radiotherapy.
15.
The claimant duly underwent palliative radiotherapy. Happily he proved to be much
more resilient than the medical profession expected. The lung cancer abated and the
claimant made a good recovery.
16.
The doctor who treated the claimant in the Oncology Clinic was Dr Prejbisz. Dr
Prejbisz examined the claimant on numerous occasions between 2002 and 2008. He
noted a rapid improvement in the claimant’s condition. In 2008 Dr Prejbisz
discharged the claimant from further follow-up.
17.
In 2008 the claimant developed a bowel problem. This was unrelated to the earlier
lung cancer. He saw Dr Lovett in connection with the bowel problem. Dr Lovett
successfully treated the claimant for this condition between 2008 and 2010.
18.
In July 2009 Corries sought to generate new claims by placing the following
advertisement in the Daily Mail:
“ASBESTOS
COMPENSATION
Did you work at any of these between 1940 and 1980?
….
Tilbury Docks
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….
Are you suffering from any of these?
• Lung cancer • Mesothelioma • Asbestosis • Pleural Plaques •
Pleural Thickening
….
CALL FOR FREE ADVICE 0800 655 6069”
The claimant’s wife saw this advertisement. She encouraged her husband to respond.
The claimant duly telephoned the number given in the advertisement and spoke to
Corries.
19.
Corries investigated the claimant’s claim in a somewhat leisurely manner. They sent
a letter of claim to the first defendant on 16th November 2009 and a letter of claim to
the second defendant on 10th November 2010. In May 2012, almost three years after
they had been instructed, Corries commenced the present proceedings.
Part 3. The present proceedings
20.
By a claim form issued in the Queen’s Bench Division of the High Court on 22 nd May
2012 the claimant claimed damages for personal injuries against both defendants. He
asserted that both NDLB and Scruttons had acted negligently and in breach of
statutory duty by exposing him to contact with asbestos. This caused him to develop
the lung cancer which was diagnosed in 2002. Both defendants served defences,
denying the alleged breaches of duty and causation. The defendants also asserted that
the claimant’s claims were barred under the Limitation Act.
21.
Master McCloud ordered the trial of a preliminary issue, to determine whether the
claimant’s claims were barred by limitation.
22.
The trial of the preliminary issue took place before Mr Justice Nicol on 24th and 25th
April 2013. The claimant and his wife gave oral evidence. The claimant put his
expert reports before the court as written evidence. The defendants relied upon
witness statements made by their respective solicitors. I shall return, in so far as
necessary, to the details of the evidence in Parts 5 and 6 below.
23.
The judge handed down his reserved judgment on 2nd May 2013: see Collins v
Secretary of State for Business Innovation and Skills [2013] EWHC 1117 (QB). He
upheld the limitation defences of both defendants and dismissed the action. I would
summarise the judge’s findings and reasoning as follows:
i)
The claimant did not have actual knowledge of the possible link between his
lung cancer and his previous exposure to asbestos until July 2009 when he saw
the advertisement. Therefore he commenced proceedings within the requisite
three year period after the date of actual knowledge.
Judgment Approved by the court for handing down.
24.
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ii)
The claimant had constructive knowledge under LA section 14 (3) of the
possible link in mid-2003. This is because, as a reasonable man, he should by
then have asked Dr Prejbisz about the possible causes of his cancer. If the
claimant had done so, Dr Prejbisz would have mentioned asbestos exposure as
a possible cause.
iii)
Therefore under LA section 11 the limitation period expired in mid-2006. The
claimant commenced his actions six years after expiry of the limitation period.
iv)
Upon application of the criteria set out in LA section 33, it did not appear
equitable to disapply the provisions of section 11. Therefore the defendants’
limitation defences succeeded.
The claimant was aggrieved by the judge’s decision on limitation. Accordingly he
appealed to the Court of Appeal.
Part 4. The appeal to the Court of Appeal
25.
By an appellant’s notice filed on 24th May 2013 the claimant appealed to the Court of
Appeal, essentially on two grounds, namely:
i)
The judge erred in finding that the claimant had constructive knowledge in
mid-2003. The claimant did not acquire constructive knowledge at any time
before July 2009.
ii)
The judge erred in the exercise of his powers under LA section 33. He ought
to have disapplied the provisions of LA section 11.
26.
There is no respondent’s notice. No party disputes the date of actual knowledge
found by the judge.
27.
One other matter is common ground between the parties. This is that the word
“attributable” in section 14 (1) (b) of the Limitation Act means “capable of being
attributed to” in the sense of being a real possibility. The attribution does not need to
be a matter of certainty. See Spargo v North Essex District Health Authority [1997]
EWCA Civ 1232; [1997] PIQR P235.
28.
Having set the scene, I must now address the first ground of appeal, concerning the
date of constructive knowledge.
Part 5. The date of constructive knowledge
29.
The claimant made three witness statements for the purpose of the preliminary issue
trial. At paragraph 10 of his third witness statement he said:
“I do not recall having asked the doctors what caused the lung
cancer at the time. At the time I was more concerned about how
long I would have left. At the time I was only given a couple
of months to live. However, in later years I did ask one of the
doctors, Dr Lovett, who was treating me for a bowel problem,
what might have caused the lung cancer but she could not tell
me. I also recall asking Dr Prejbisz, my oncologist, but he said
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that he could not say as he simply did not know what had
caused it. He just told me that I had it, it was cured and that I
have now got over it.”
The judge accepted this evidence.
30.
In cross-examination the claimant said that his conversation with Dr Prejbisz came
after his conversation with Dr Lovett. This implies that the claimant had both those
conversations in 2008. The claimant started consulting Dr Lovett in 2008 and his
follow-up sessions with Dr Prejbisz ended later that year.
31.
Having accepted the claimant’s factual evidence as to what actually happened, the
judge went on to make two crucial findings about what should and would have
happened. These were:
32.
i)
It was reasonable for the claimant not to make inquiries about the cause of his
cancer in the period immediately after he had received such a devastating
diagnosis. Nevertheless by mid-2003 it would have been reasonable to expect
the claimant to ask Dr Prejbisz about the possible causes of his lung cancer:
judgment paragraph 28.
ii)
If asked, it was “inconceivable” that Dr Prejbisz would not have mentioned
asbestos exposure as a possible cause: judgment paragraph 27.
Mr Simon Kilvington, on behalf of the claimant, attacks both of those findings. I
shall deal with them in turn.
(i) As a reasonable man, should the claimant have inquired about the possible causes of his
lung cancer by mid-2003?
33.
The courts have considered the operation of LA section 14 (3) on a number of
occasions. The two most important decisions for present purposes are Adams v
Bracknell Forest Borough Council [2004] UKHL 29; [2005] 1 AC 76 and Johnson v
Ministry of Defence [2012] EWCA Civ 1505; [2013] PIQR P7.
34.
In Adams A attended the defendant’s schools between 1977 and 1988. He had always
experienced difficulties with reading and writing and as an adult found those
difficulties to be an impediment in his employment. He believed them to be the cause
of the depression, panic and lack of self-esteem which he suffered. He consulted his
doctor about those conditions, but was too embarrassed to disclose his literacy
difficulties during the consultations. In 1999, when aged 27, he met by chance an
educational psychologist, who suggested that he might be dyslexic. Upon a doctor
confirming that diagnosis the appellant, in 2002, issued proceedings against the
defendant. He claimed damages for negligence on the grounds of the defendant’s
failure properly to assess the educational difficulties he had experienced at school. He
said that such an assessment would have revealed that he suffered from dyslexia and
led to treatment to ameliorate the consequences of that condition.
35.
A’s claim failed on the issue of limitation. The House of Lords held that A could
reasonably have been expected to seek professional advice before 1999. Therefore A
had commenced proceedings more than three years after the date of constructive
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knowledge. In arriving at this conclusion the House of Lords held that the test to be
applied under section 14 (3) was an objective one. The court must disregard the
particular characteristics of A and decide what inquiries a reasonable person, who had
suffered A’s injury, would make. The normal expectation was that someone who had
suffered a serious injury would seek professional advice as to the cause.
36.
In Johnson J claimed that his former employers had exposed him to excessive noise
during the course of his employment and that this had caused deafness. J became
aware of his hearing problems in 2001. He was also aware that exposure to noise
could cause hearing loss. However, he did not associate his own hearing problems
with exposure to noise in earlier years. In 2006 he consulted a doctor, asking if he
had wax in his ears. The doctor attributed J’s hearing difficulties to ageing. In 2009 J
saw a consultant who advised that he had noise induced hearing loss. He then issued
proceedings. The trial judge dismissed J’s claim on limitation grounds and the Court
of Appeal upheld that decision.
37.
The Court of Appeal held that a reasonable person in J’s position would have been
curious about the cause of his deafness. He would have consulted his general
practitioner. The doctor would probably have asked him about his employment
history. This would have led to possible attribution of the claimant’s deafness to
exposure to excessive noise at work. Allowing a year or so for consideration, J was
fixed with constructive knowledge about the possible cause of his deafness by the end
of 2002: see the judgment of Dame Janet Smith (with whom Etherton and Hallett LJJ
agreed) at [21] to [31].
38.
Because the test in section 14 (3) is an objective one, the practical consequence is that
some injured persons fail to make reasonable and timeous inquiries, with the result
that they are time-barred. This is unsurprising. Sections 11 to 14 of the Limitation
Act strike a balance between the interests of (a) persons who, having suffered latent
injuries, seek compensation late in the day and (b) tortfeasors who, despite their
wrongdoings, ultimately need closure. Parliament has struck that balance by means of
an objective test. Parliament has also provided a safety net in the form of section 33
so as to prevent injustice arising.
39.
Let me now revert to the present case. In my view, applying the objective test, that
judge was entirely right to say that a reasonable person in the claimant’s position
would have asked about the possible causes of his lung cancer by mid-2003. This
inference is entirely consistent with the approach of the House of Lords in Adams and
the approach of the Court of Appeal in Johnson.
40.
The medical records reveal that during 2002 at least one doctor questioned the
claimant about his lifestyle and former employment. Obviously the doctor was asking
these questions for a purpose. Any reasonable person in the claimant’s position
would have been prompted to inquire what light this shed upon the possible causes of
his cancer.
41.
Mr Kilvington points out that on the judge’s findings the claimant did not in fact ask
the doctors about these matters until 2008. Furthermore, when he did so, he asked
what was the cause, not the possible cause, of his lung cancer: see paragraphs 13 and
26-28 of the judgment.
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42.
In my view the fact that the claimant delayed for six years before asking the obvious
question does not assist his case. A reasonable person would have been prompted to
inquire sooner. The way in which the claimant chose to formulate his question in
2008 does not assist in determining how the claimant would or should have
formulated any similar question in 2002/3.
43.
Finally on this issue, for reasons to be set out in the next section, the precise
formulation of the claimant’s question in 2002/3 is irrelevant. Whether he had asked
about “causes” or “possible causes”, he would probably have received the same
answer.
(ii) What would Dr Prejbisz have said, if asked about the possible causes of the claimant’s
lung cancer in 2003?
44.
Mr Kilvington relies heavily upon the judge’s finding that in 2008 the claimant asked
Dr Lovett and Dr Prejbisz about the cause of his lung cancer and their answer was that
they did not know.
45.
For present purposes the answer given by Dr Lovett is irrelevant. She did not come
on the scene until 2008. She was dealing with the claimant’s current bowel problem,
not his earlier episode of lung cancer.
46.
The answer given by Dr Prejbisz is more important. He worked in the Oncology
Clinic and is the doctor whom the claimant should have questioned in 2002/3. It is
therefore necessary to look more closely at what he said in 2008. According to the
claimant’s evidence (which the judge accepted) Dr Prejbisz “could not say as he
simply did not know, what had caused it. He just told me that I had it, it was cured
and that I have now got over it”.
47.
2008 was the year in which Dr Presbisz discharged the claimant from follow-up. He
was dealing with an 84 year old man who had suffered lung cancer six years earlier
and who had been completely cured. Dr Prejbisz’s somewhat brusque response in
2008 does not assist in determining what he would have said, if asked about the
matter in 2002/3.
48.
The judge has held that, if asked about possible causes in 2002/3, “it is inconceivable
that Dr Prejbisz would not have mentioned asbestos exposure”: see paragraph 27 of
the judgment. That conclusion must be correct. The medical records of 2002 contain
several references to the claimant’s employment history and his exposure to asbestos.
For example, Dr Prejbisz wrote a fairly full note about the claimant’s diagnosis and
history after examining him on 30th May 2002. This included the entry: “previously
worked with asbestos at Tilbury Docks”.
49.
Dr Prejbisz would have known that exposure to asbestos was one of the possible
causes of lung cancer. If asked about the matter in 2002/3, when the question was
relevant, I agree with the judge it is inevitable that Dr Prejbisz would have mentioned
exposure to asbestos as a possible cause of the claimant’s lung cancer. In my view,
this is the case however the claimant had formulated his question. If the claimant had
simply asked “what is the cause?”, Dr Prejbisz while saying that he did not know for
certain would have mentioned exposure to asbestos as a possible cause.
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50.
Let me now draw the threads together. For the reasons set out above, I agree with the
judge’s decision that the claimant had constructive knowledge by the middle of 2003.
I therefore reject the claimant’s first ground of appeal.
51.
I must now move on to the second ground of appeal, concerning the application of
section 33 of the Limitation Act.
Part 6. The application of section 33 of the Limitation Act 1980
52.
The claimant contends that the judge erred in failing to disapply the limitation
provisions in the exercise of his power under LA section 33.
53.
The claimant’s main attack is directed to paragraphs 9 to 12 of the judgment. In that
section the judge held that he could take into account prejudice which the passage of
time between 1947 and 2003 had caused to the defendants. Counsel on both sides
identified this matter as the main issue of principle in the appeal. I must therefore
review the authorities which counsel have cited in support of their respective
positions.
54.
In Donovan v Gwentoys Ltd [1990] 1 WLR 472 a 16 year old girl slipped and fell
whilst employed at the defendant’s factory. The limitation period expired on her 21 st
birthday. She commenced proceedings five and a half months after that date. The
judge extended time under LA section 33, holding that he could only consider
prejudice suffered by the defendant in the last five and a half month period. The
Court of Appeal upheld that decision, but the House of Lords reversed it. The House
of Lords noted that the opening words of section 33 (3) required the court to “have
regard to all the circumstances of the case.” That provision enabled the court to take
into account prejudice caused to the defendant by the plaintiff’s delay over the entire
period since her accident.
55.
At pages 479 to 480 Lord Oliver (with whom Lord Bridge, Lord Templeman and
Lord Lowry agreed) said this:
“The argument in favour of the proposition that dilatoriness on
the part of the plaintiff in issuing his writ is irrelevant until the
period of limitation has expired rests upon the proposition that,
since a defendant has no legal ground for complaint if the
plaintiff issues his writ one day before the expiry of the period,
it follows that he suffers no prejudice if the writ is not issued
until two days later, save to the extent that, if the section is
disapplied, he is deprived of his vested right to defeat the
plaintiff's claim on that ground alone. In my opinion, this is a
false point. A defendant is always likely to be prejudiced by the
dilatoriness of a plaintiff in pursuing his claim. Witnesses'
memories may fade, records may be lost or destroyed,
opportunities for inspection and report may be lost. The fact
that the law permits a plaintiff within prescribed limits to
disadvantage a defendant in this way does not mean that the
defendant is not prejudiced. It merely means that he is not in a
position to complain of whatever prejudice he suffers. Once a
plaintiff allows the permitted time to elapse, the defendant is no
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longer subject to that disability, and in a situation in which the
court is directed to consider all the circumstances of the case
and to balance the prejudice to the parties, the fact that the
claim has, as a result of the plaintiff's failure to use the time
allowed to him, become a thoroughly stale claim, cannot, in my
judgment, be irrelevant.”
56.
In Donovan the plaintiff was aware of all relevant facts on the date of the accident. It
was therefore possible for Lord Oliver to characterise her inaction over the entire five
year period between the date of the accident and the date of issuing the writ as
“dilatoriness”. In a case such as the present, where there is a time lag between breach
and causation of injury, then a further time lag before the date of constructive
knowledge, it is not possible to characterise the claimant’s inactivity over the entire
period since 1947 as “dilatoriness”.
57.
In Price v United Engineering Steels Ltd [1998] PIQR P407 the plaintiff claimed
damages for deafness induced by exposure to excessive noise during his employment
with the first and second defendants some 20 to 35 years previously. He issued his
writ six years after the date of knowledge under LA section 14 and therefore three
years after expiry of the limitation period. The judge declined to extend time under
section 33. In reaching this decision he had regard to prejudice caused by the loss of
evidence and records in the period before the plaintiff’s date of knowledge. The
Court of Appeal upheld that decision, relying upon the speech of Lord Oliver in
Donovan.
58.
The significance of Price is this. The Court of Appeal extended the principle stated
by Lord Oliver in Donovan so as to cover a period of time before the plaintiff knew,
or could have known, that he had a claim. It would not be right to characterise this as
“dilatoriness”. “Passage of time” would be a fairer description.
59.
In AB v Ministry of Defence [2010] EWCA Civ 1317 a large group of servicemen or
their dependants and personal representatives claimed damages for personal injuries
suffered as a result of experimental nuclear explosions in the 1950s. On the trial of
preliminary issues in ten lead cases Foskett J held that five of the claims had been
issued in time and that the other five claims should be permitted to proceed in the
exercise of the court’s discretion under section 33 of the Limitation Act.
60.
On appeal the Court of Appeal held that only one of the ten claims had been issued in
time. Furthermore the judge had erred in the exercise of his discretion under section
33. The nine claims which had been issued out of time should not be allowed to
proceed because they had no realistic prospect of success. Smith LJ, delivering the
judgment of the court, dealt with generic issues concerning section 33 of the
Limitation Act at paragraphs 84 to 111.
61.
At paragraph 98 Smith LJ stated that delay going back to the 1950s could be relevant
as part of “all the circumstances of the case” under section 33 (3). It was an important
issue whether a fair trial of the primary factual issues could now take place. In
relation to one of the ten cases (John Allen Brothers) Smith LJ specifically took that
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historic delay into account, although it is not entirely clear on which side of the scales
she placed it: see paragraphs 202-203.
62.
AB v Ministry of Defence subsequently went to the Supreme Court ([2012] UKSC 9;
[2013] 1 AC 78), but only on issues concerning section 14 of the Limitation Act. The
Supreme Court did not consider the operation of section 33 and therefore I need not
review the judgments of the Supreme Court.
63.
In Davies v Secretary of State for Energy and Climate Change [2012] EWCA Civ
1380 a group of miners claimed damages for personal injuries caused by the
conditions in which they had worked between 1954 and 1993. Eight representative
actions were dealt with first. In each of those eight cases the claim was issued after
expiry of the limitation period. On the trial of preliminary issues Judge Grenfell, in
the exercise of his discretion under section 33 of the Limitation Act, declined to allow
those actions to proceed. At paragraphs 46 to 47 of his judgment Judge Grenfell said
that he must take into account the defendant’s difficulties which pre-existed the
claimant’s date of knowledge as part of his overall assessment under section 33.
64.
The Court of Appeal upheld Judge Grenfell’s decision. Tomlinson LJ gave the lead
judgment, with which Mummery and Hallett LJJ agreed. At paragraph 18 of his
judgment Tomlinson LJ quoted with approval the passage in Judge Grenfell’s
judgment to which I have referred.
65.
None of those authorities discussed the issue of pre-limitation period effluxion of time
at any length. In a long tail case the problem seems to me to be this. Criterion (b)
requires the court to focus specifically upon the extent to which the evidence has
become less cogent during the claimant’s delay. If the claimant is out of time, the
House of Lords’ decision in Donovan allows the court to take account of prejudice
accruing since the date when the claimant knew he/she had a claim. The decisions in
Price, AB and Davies establish that the court can also take account of delay before the
date of actual or constructive knowledge. On the other hand, it would be absurd if the
defendant could rely upon all the prejudice accruing from the date when the breaches
of duty occurred, alternatively from the date when (unknowingly) the claimant
suffered injury. If all that prejudice could be fully taken into account, section 33 (3)
(b) would serve no useful purpose. Loss of cogency of evidence during the limitation
period must be a factor which carries more weight than (a) the disappearance of
evidence before the limitation clock starts to tick or (b) the loss of cogency of
evidence before the limitation clock starts to tick. Furthermore both the claimant and
the defendant may rely upon the effects of delay before the limitation clock starts to
tick for different purposes.
66.
Construing section 33 (3) as best I can in the light of the authorities, my conclusions
are:
i)
The period of time which elapses between a tortfeasor’s breach of duty and the
commencement of the limitation period must be part of “the circumstances of
the case” within the meaning of section 33 (3).
ii)
The primary factors to which the court must have regard are those set out in
section 33 (3) (a) to (f). Parliament has singled those factors out for special
mention.
Judgment Approved by the court for handing down.
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iii)
Therefore, although the court will have regard to time elapsed before the
claimant’s date of knowledge, the court will accord less weight to this factor.
It will treat pre-limitation period effluxion of time as merely one of the
relevant factors to take into account.
iv)
Both parties may rely upon that factor for different purposes. The claimant
may rely upon the earlier passage of time in order to buttress his case under
section 33 (3) (b). The claimant may argue that recent delay has had little or
no impact on the cogency of the evidence. The damage was done before the
claimant started being dilatory. The defendant may rely upon the earlier
passage of time, in order to show that it already faced massive difficulties in
defending the action; therefore any additional problems caused by the
claimant’s recent delay are a serious matter. It is for the court to assess these
and similar considerations, then decide on which side of the scales to place this
particular factor.
67.
Let me now return to the present case. The judge carried out his evaluation exercise
at paragraphs 30 to 48 of the judgment. He treated the criteria set out in section 33 (3)
(a) to (f) as the factors of primary importance. He also had regard to the passage of
time (some 50 years) between the defendant’s alleged breaches and the claimant’s
date of constructive knowledge. He took into account the extent to which this assisted
the claimant in relation to criterion (b). More generally he treated the lengthy period
of historic delay as a factor making it less equitable to extend time under section 33
(1). The judge did not attach undue weight to this consideration.
68.
In my view the judge was entitled to take the period of historic delay into account in
the manner that he did. I therefore reject the claimant’s main line of attack on the
judge’s decision under section 33.
69.
I can deal with the claimant’s other arguments more shortly. In relation to criterion
(b), the judge noted numerous inconsistencies between the claimant’s three witness
statements, as well as between his written and oral evidence. He attributed these
inconsistencies to the claimant’s advancing age. The judge concluded that the
evidence had become “less cogent” as a result of the claimant’s six year delay
between expiry of the limitation period and issue of proceedings.
70.
That is an eminently reasonable conclusion, which is not susceptible to attack on
appeal. Mr. Kilvington argues that the claimant’s fading recollection can only harm
the claimant’s case, not the defendant’s case. I do not agree. The inconsistencies in
the claimant’s factual evidence make it difficult for defendants to instruct their experts
and to deal with issues such as apportionment. The judge concluded, and was entitled
to conclude, for the purposes of LA section 33 (1) (b) that the claimant’s delay since
expiry of the limitation period had caused prejudice to the defendants.
71.
Under the heading “other matters” the judge characterised the claimant’s case as
weak, in that it would be difficult for him to establish the requisite degree of exposure
to asbestos. I am inclined to think that assessment was somewhat harsh. The
claimant had the support of two independent experts, as well as one other dock
worker from the same period. The defendants have not yet provided any expert
evidence to rebut the claimant’s contentions. I would characterise the claimant’s case
as “difficult”, rather than weak.
Judgment Approved by the court for handing down.
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72.
The judge also characterised the claimant’s claim as being of relatively low value. I
certainly agree with that comment. The claimant suffered from an episode of lung
cancer, which happily was cured by radiotherapy. Dr Rudd, the claimant’s medical
expert, assesses the risk of recurrence as 2%. The claimant is a man of fortitude, who
has led a full life and is now approaching his 90th birthday. Realistically this personal
injury claim, which he was induced to bring as a result of advertising by his solicitors,
is one of low value. I agree with the judge that there is a disproportion between the
litigation costs and the sum in issue.
73.
The judge discussed the application of all the section 33 criteria to the facts of this
case. Much of that discussion is not seriously criticised.
74.
In determining whether to extend time under LA section 33 the judge must consider
the matters specifically identified in section 33 (3), as well as all the circumstances of
the case. He then carries out an evaluation under section 33 (1) in order to determine
whether it would be equitable to allow the action to proceed, having regard to the
degree to which (a) the claimant is prejudiced by the time bar and (b) the defendant
would be prejudiced if the time bar were lifted.
75.
In the present case the judge carefully evaluated all the relevant factors and came to a
conclusion under section 33 which is plainly correct.
76.
The Court of Appeal is always slow to interfere with an evaluation made by a trial
judge who was required to weigh up conflicting considerations. In this case I would
go one stage further and say that the judge was obviously correct. I would therefore
reject the second ground of appeal.
Part 7. Executive summary and conclusion
77.
The claimant was diagnosed with lung cancer in May 2002, from which he made a
good recovery. He attributes that illness to exposure to asbestos between 1947 and
1967 as a result of the defendants’ negligence and breaches of statutory duty. He
issued proceedings in May 2012. The judge held that the claimant’s date of
constructive knowledge was mid-2003, with the result that the limitation period
expired in mid-2006; accordingly the claimant started his action six years after expiry
of the limitation period. The judge declined to extend time under section 33 and
dismissed the action.
78.
In my view the judge was correct on both issues. As a reasonable person the claimant
ought to have asked about the possible causes of his lung cancer by mid-2003. The
treating oncologist, who had recorded the claimant’s work with asbestos in his notes,
would probably have identified exposure to asbestos as a possible cause. The judge
properly weighed up the relevant factors and conflicting considerations under section
33. He was entitled to, and did, take into account the lengthy passage of time between
the period 1947 to 1967 (when the defendants allegedly committed breaches of duty)
and mid-2003, when the claimant was fixed with constructive knowledge.
79.
If my Lord and my Lady agree, this appeal will be dismissed.
Lord Justice Lewison:
Judgment Approved by the court for handing down.
80.
I agree.
Lady Justice Macur:
81.
I also agree.
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