Limitation in Long Tail Disease Claims: Knowledge and discretion
Published 23 May 2014
The Court of Appeal today handed down their judgment in Collins v Secretary of State for Business, Innovation & Skills (1) and Stena Line Irish Sea Ferries (2). The claimant was a dockworker at Tilbury Docks between 1947 and 1984. He alleged that he was exposed to asbestos as a result of that work in the period 1947 to 1967.
In 2002 he was diagnosed with lung cancer, from which he made a good recovery. In July 2009, he responded to an advert by solicitors (Corries) about asbestos compensation. The claim was investigated and in 2012 proceedings were issued, blaming the National Dock Labour Board (D1), or alternatively Scruttons (D2) as his day-to-day employer. At a preliminary hearing on limitation in the High Court before Nicol J, the claimant's claim was dismissed. This appeal challenged Nicol J's rulings on limitation.
The issues in the appeal
There were two main issues for consideration by the Court of Appeal:
- The date of constructive knowledge under section 14 of the Limitation Act 1980 (LA); and
- Whether the judge ought to have extended time under section 33 LA.
Nicol J had fixed the claimant with constructive knowledge in mid-2003, with the result that the 3 year time limit under Section 11 had expired in 2006. The Court of Appeal held that as the test in section 14(3) is an objective one, there is a practical consequence that some injured persons fail to make timeous enquiries, with a result that they are time barred. Sections 11 and 14 strike a balance between the interests of (a) a person who, having suffered latent injuries, seeks compensation late in the day, and (b) tortfeasors who, despite their wrongdoing, ultimately require closure. The Court of Appeal further commented that Parliament have met that balance by means of an objective test, with section 33 providing a "safety net" to prevent injustice from arising.
The Court of Appeal agreed that on the facts of this case, a reasonable man in the claimant's position would have asked questions as to the cause of his lung cancer by mid-2003 and therefore the judge's decision on section 14 LA was upheld.
Nicol J had considered the powers under section 33 LA to disapply the limitation period, but had exercised his discretion in favour of the defendants. He had found that he could take into account prejudice which the passage of time between exposure from 1947 and knowledge in 2003 had caused to the defendants. Both sides identified this as the main issue in the appeal.
Section 33 LA sets out 6 criteria which must be taken into account in deciding whether to exercise discretion. Section 33(3)(b) requires the court to focus specifically on the extent to which the evidence has become less cogent during the claimant's delay. The question was the extent to which the passage of time between exposure and date of constructive knowledge could be taken into account, when in a disease claim this could be many years.
- The Court of Appeal, with Jackson LJ giving the lead judgment, held:
- The period of time which elapses between a tortfeasor's breach of duty and commencement of the limitation period must be part of "the circumstances of the case" within the meaning of s33(3);
- 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;
- 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.
Both parties may rely upon that factor for different purposes. The claimant may rely on the earlier passage of time to buttress his case under s33(3)(b), arguing for example that recent delay has had little or no impact on the cogency of the evidence. The defendant may rely on it to show that it already faced massive difficulties in defending the action; such that 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.
The Court of Appeal held that the judge was entitled to take the period of historic delay into account in the way that he did. Jackson LJ commented that: "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."
The appellant also challenged the judge's comments on prospects and proportionality. Jackson LJ preferred to describe the underlying claim as "difficult" rather than "weak", but agreed that the claimant's claim was of relatively low value: "The claimant suffered from an episode of lung cancer, which happily was cured by radiotherapy...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."
This judgment reinforces previous decisions that an objective test is applied to determine when claimants have knowledge that a medical condition might give rise to a claim. The Court of Appeal has also provided useful clarity on the effect of the claimant not acting in time: whilst the discretion under section 33 is available, where there is a significant latency period between exposure and onset of symptoms that is one of the circumstances of the case to be taken into account, along with proportionality.
This guidance will have a particular impact on low-value disease claims, such as those for noise induced hearing loss.
Andrew Parker's Strategic Litigation team acted for the 1st defendant in successfully defending the appeal.