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Asbestos limitation: s.33 Limitation Act 1980 – constructive knowledge

Collins v Secretary of State for Business Innovation and Skills and Stena Line Irish Sea Ferries Ltd
2 May 2013
High Court

This is a useful case for disease practitioners when considering the issue of limitation in a disease context, both from the point of view of the definition of "knowledge" for the purposes of Sections 11 and 14 of the Limitation Act 1980 and also Section 33 discretion issues. The High Court here refused to exercise its discretion to extend time under section 33 to allow a personal injury claim to proceed, notwithstanding the expiry of the primary limitation period.

Facts

The court had to consider whether, and if so when, a former dockyard worker had constructive knowledge under section 14 of the Limitation Act 1980 of the fact that the lung cancer which he had developed by May 2002 was attributable in whole or in part to his alleged exposure to asbestos. The Claimant said he first became aware of a possible connection between his cancer and exposure to asbestos when he saw an advertisement in July 2009. The claim form was issued in May 2012.

Findings

The court held that even though the Claimant was 78 and had smoked in the past, it would have been reasonable to expect him to make further inquiries as to the possible causes of his lung cancer. Had he done so, exposure to asbestos would have been identified as a possible cause. Allowing for "thinking time" to embark on those inquiries and some response time for the doctors, the Claimant would have had constructive knowledge under section 14 of the Limitation Act 1980 by the middle of 2003. The claim was therefore outside the three year limitation period in section 11 of the Act.

The court declined to exercise its discretion to disapply the time limit under section 33 of the Act, holding that the Claimant's delay exacerbated the difficulties the defendants would face examining events which occurred up to 66 years earlier. It was also relevant that the claim did not have a good chance of success: the Claimant's memory was imprecise and there were few contemporaneous records. The court also considered the disproportion between the likely recoverable loss and litigation costs.

Knowledge - comment

The judgment is a useful reminder that there are two types of knowledge for these purposes; "actual" and "constructive" knowledge. "Actual" knowledge is straightforward; it must be shown that the claimant was positively aware that he had an injury which was significant and also that that injury could in some way be attributable to the defendant's negligence.

"Actual" knowledge is obviously the more difficult of the two types of knowledge for a defendant to establish but if not established a claimant can also be fixed with knowledge for the purposes of limitation if it can be shown that he had "constructive" knowledge. This means that even if the claimant did not actually know that his injury was attributable to his employment or know that the injury was significant then if he might reasonably have been expected to acquire that knowledge from facts ascertainable by him, including with the help of medical or legal or other expert advice which it is reasonable for him to seek then the claimant will be fixed with knowledge.

In this case, despite the fact the Claimant did not have actual knowledge, he was fixed with constructive knowledge because the possibility that exposure to asbestos may have been a factor in his lung cancer was raised with him by a treating physician, albeit it appears the reference was only made once or twice and not in terms that there was definitely a direct link. Notwithstanding the fact the claimant's doctor was not categorical, the judgment is useful because it reminds us that the test in respect of constructive knowledge is an objective one - what would a reasonable person do when presented with these facts? The court held that there is an assumption that a person who has suffered a significant injury would be naturally curious enough to seek further information and advice; including on the reasons for the injury. The court recognised that this placed a demanding test on the claimant - which is for deliberate policy reasons. In this case the court found that a reasonable person in the Claimant's situation would have made further enquiries on what caused his lung cancer. That being the case and allowing for a period of time to take into account the initial shock of receiving the diagnosis, a period of slight recovery following treatment and then "thinking time" the court held that the Claimant had constructive knowledge for the purposes of the Limitation Act.

Section 33 - comment

The judgment also provides a useful summary of the Section 33 criteria which the court will consider when deciding whether to exercise its discretion to allow a time barred claim to proceed.

The various criteria are set out at Section 33(3). However, the judgment stresses that the Section 33(3) criteria are not exhaustive and pursuant to Section 33(1) and also the opening words of Section 33(3), the court can take all of the facts of the case into account. The court held that deciding whether or not to allow a statute barred claim to proceed the court was in effect an exercise in balancing the potential prejudice to both parties. The criteria set out at Section 33(3) were just some of the factors the court should take into account when performing that balancing exercise.

It is noteworthy, in a disease context, that the court held that the long period of time between alleged exposure and the bringing of the claim and the consequent difficulties in investigating the claim was of itself a factor which the court would take into account when considering whether to exercise its discretion. In this case and probably in many asbestos exposure cases, most of the difficulty associated with the long delay between exposure and bringing a claim would exist in any event because there is already a long lag between exposure and onset and then knowledge of the injury but the fact the defendants would have encountered difficulty anyway had the claim been brought in good time did not matter - the generality of the opening words meant that the court could take into account the totality of the difficulty which the defendants would now face in defending the claim. "Delay" for the purpose of Section 33(3) (a) and (b) refers to the length of time the claim is statute barred but, for the purposes of Section 33 as a whole, the court is entitled to take into account all the difficulties encountered by the defendants in respect of the entire period of time between exposure and the bringing of the claim. This is an important point for Defendants and their insurers when considering limitation in disease cases.

Also relevant and interesting from a disease perspective is the fact the court held that difficulties in assessing and agreeing apportionment (relevant in most disease claims) is something which the court will take into account when exercising its discretion.

The court considered the other Section 33(3) criteria in detail. Of particular relevance here was the fact that this was a lung cancer case, issues around the duration and intensity of exposure to asbestos and the type of asbestos were therefore relevant as was consideration of the Helsinki Criteria in respect of causation. In those circumstances the court held that the fact the Claimant's evidence was not entirely consistent and his memory on key points had faded was a relevant factor. The court held that it was entitled to consider the strengths of the Claimant's case and his prospects of success when weighing the prejudice arguments and the weaknesses in the Claimant's case were a factor which counted against the Claimant in terms of Section 33.

As a finding of fact, the court held that the availability and cogency of evidence had been impaired by reason of the delay.

Finally, it is noteworthy that the court held that the level of the Claimant's claim (this was not a particularly high value claim relative to other lung cancer or mesothelioma claims), relative to the potential costs of the action (which would be significant) was another factor which the court could and did take into account, again in the defendants favour in terms of the Section 33 dispute.

For the above reasons, the court held that the claim was issued approximately 6 years after the Claimant had constructive knowledge of his injury and the court refused to exercise its power under Section 33 to extend time.

For further information, please contact Patrick McBrien, Director Occupational Health on 0161 603 5236 or at patrick.mcbrien@dwf.co.uk

By Patrick McBrien

This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

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