Asbestos – A Limitation Decision

Published 28 March 2018

Richard Fudge v (1) Harkins & Holmes Ltd (2) FG Minter Ltd (3) Charles Winstone (Builders) Ltd [2018] EWHC 453 (QB)

Facts and Background

The Claimant, aged 81, claimed provisional damages against each of the Defendants for alleged asbestos–related injury leading to the development of diffuse pleural thickening and asbestosis. He alleged that he was exposed to asbestos while working for the Defendants at various separate times between 1973 and 1978, cutting asbestos insulation boards, sweeping asbestos dust and debris, or working near laggers as they worked with asbestos paste.

The Claimant's overall asbestos related disability was 30% with a 3% risk of mesothelioma and a 2% risk of lung cancer.

The Defendants each denied liability and pleaded limitation defences. It was common ground between the parties that the action had been brought five and a half years after expiry of the limitation period.

The issue before the Court was the preliminary issue of whether the Court should exercise their discretion under section 33 of the Limitation Act 1980 to disapply the limitation period.

The Decision

The Court dismissed the Claimant's application to disapply the effects of sections 11 and 14 of the Limitation Act 1980 and consequently dismissed the action. It was not equitable to allow the matter to proceed given the considerable delay, an important part of which could have been avoided by the Claimant. No good reason had been given for the delay which had resulted in significant prejudice for the Defendants to the extent that a fair trial is now unlikely to be possible.

The Court was satisfied that the cogency of the evidence had been significantly reduced by the delay in bringing proceedings. The almost inevitable difficulty faced by Defendants in these historic cases increases the importance of them being able to test the evidence of the Claimant by reference to surrounding circumstances and contemporary documentation.

It was clear to the Court that the Claimant had considerable difficulty remembering a great deal about where he worked, what he did, which employers he worked for and in which order he did so. His oral evidence reinforced the impression given in his written statements that he could remember only the barest detail of his work during the relevant period. The Claimant took his time to approach solicitors at all and failed to disclose documents to them.

To allow the Claimant to attempt to prove his case at trial would place a disproportionate burden on the Defendants to resist it and they would be obliged to expend resources in investigating and defending a claim which relies almost exclusively on the fading memory of the Claimant.

This is a win for Defendants on an issue where sympathy is often extended to the Claimant and emphasises that Claimants should retain evidence they do have in order to afford Defendants the opportunity to investigate, and the Court will take this into consideration when deciding whether it is appropriate to grant discretion.