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Recent developments in the law of limitation in disease claims

Collins v Secretary of State

This was a lung cancer case where the court considered whether, and if so when, a former dockyard worker had constructive knowledge 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 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 held 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.

The judgment is a useful reminder that if actual knowledge cannot be established defendants should consider whether a claimant might be fixed with "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 he will still have knowledge 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. When considering the issue of constructive knowledge 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.

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.

From a disease perspective, it is interesting that the court held that difficulties in assessing and agreeing apportionment is something which can be taken into account when exercising its discretion – it is a difficulty defendants usually face in dealing with such claims.

The difficulties associated with dealing with issues around the duration and intensity of exposure to asbestos, the type of asbestos and the application of the Helsinki Criteria in respect of causation was a further difficulty, specifically relevant to disease cases, which militated against allowing a time barred claim to proceed. In essence, the court was entitled to consider the strengths of the claimant's case and his prospects of success when weighing the prejudice arguments.

The court held that the overall difficulty in defending a claim arising out of alleged employment and exposure many years ago was a factor which militated against the exercise of its discretion in the claimant's favour.

The Claimant therefore lost on date of knowledge and section 33 and the claim was dismissed on grounds of limitation.

Nicholas v Ministry of Defence

It is interesting to compare the decision in Collins with Nicholas, also a recent High Court limitation decision. Nicholas was an asbestosis case brought by the estate of the deceased approximately 7 years out of time. The defendant had admitted breach of duty and causation, subject to limitation. As a finding of fact the court held that there was no prejudice by reason of the delay. It was held that prejudice, or "the defendant's ability to resist the claim on the merits" was the "critical factor" in the exercise of the court's section 33 discretion. The admissions of breach of duty and causation were clearly very relevant factors in the court's finding that there was no prejudice. Also of relevance was the fact there was reasonable explanation for much of the delay; namely the fact the deceased was elderly and in very poor health.

The court accordingly exercised its section 33 discretion in the claimant's favour, allowing an otherwise time barred claim to proceed.

DWF Cases

Applying the reasoning set out in the above cases and elsewhere, DWF and their insurer clients have had a number of recent limitation successes in disease cases.

Robert Gibbs v W Lake (Birmingham) Ltd was a decision of the Birmingham County Court in a deafness case in June of this year. The defendant was a "shell" company but we made attempts to trace witnesses and documents. We managed to trace one former director. There were no records available and no further witnesses. The court held that the availability and cogency of evidence had been impaired by reason of the claimant’s delay and the claim was struck out on grounds of limitation. As in the Collins case, a significant factor was the inherent weaknesses in the claimant's case, including his own evidence.

In the case of Davey v GN Haden we obtained witness evidence confirming the non-availability of documents and relevant witnesses. We also pointed to the claimant's conduct in failing to bring the claim as part of previous proceedings against other employers for the same injury and argued that this failure was relevant to the exercise of the court's section 33 discretion. This was a lung cancer case and applying Collins, we argued that the duration, intensity and type of asbestos exposure were relevant factors in the application of the Helsinki Criteria and therefore in establishing causation. As much of the alleged exposure was in the 1980s, we argued that it was very unlikely that it would have been at a level to satisfy the Helsinki Criteria, by that time. We argued that it was much more difficult for the court to determine these issues as a result of the delay. The claim was discontinued a few days before trial.

We have also recently had the judgment of the Newcastle County Court in Salmon v Tolent Construction. This was a vibration white finger case, again struck out on grounds of limitation. The court pointed to the inherent weaknesses and inconsistencies in the claimant's evidence and also relative low value of the claim as relevant factors which persuaded the court not to exercise its section 33 discretion to allow this time barred claim to proceed.

Comment

Limitation can be a very effective defence in disease cases. In terms of date of knowledge, defendants should consider whether there is actual knowledge of the injury and if not, whether the claimant can be fixed with constructive knowledge. In other words, would a reasonable person have carried out further enquiries which would have highlighted the potential for a claim?

In relation to the exercise of the court's section 33 discretion it is noteworthy, in a disease context, that the court in Collins held that all of the difficulties caused by the long period of time between alleged exposure and the bringing of the claim were a relevant factor in refusing to allow the claim to proceed. In Collins and in very many asbestos cases, most of these difficulties would have existed anyway, had the claim been brought in time (because there is already a long lag between exposure, onset and then knowledge of the injury). The fact the defendants may have suffered prejudice had the claim been brought in time does not however logically mean that they cannot complain of prejudice once the claimant has failed to bring proceedings in time. “Delay" for the purpose of section 33(3)(a) and (b) refers to the length of time the claim is statute barred and any additional prejudice caused by this delay is clearly relevant. For the purposes of section 33 as a whole, the court is however entitled to take into account all the difficulties encountered by the defendants.

In Nicholas the exposure to asbestos was also a very long time ago (during World War 2). By definition, therefore, it was a difficult claim for the defendant to defend. The court nevertheless allowed the claim to proceed. Collins and Nicholas are not directly comparable because there were difficult causation issues and weaknesses in the case generally in Collins which did not exist in Nicholas. However, one other key difference was clearly the fact there was an admission of breach of duty in Nicholas, but not in Collins. Making such an admission will make it much more difficult for a defendant to win on section 33. Insurers should therefore exercise care in making an admission of breach where there appears to be potentially strong limitation defence. If what is meant is that the alleged employment and exposure was so long ago that there is no evidence either way to justify admitting or contesting breach, then it is reasonable to say so. This is preferable to being pressured into an admission on a case where there is a strong case on the first limb of a limitation defence; namely, date of knowledge.

In summary, deciding whether or not to allow a statute barred claim to proceed was in effect an exercise in balancing the potential prejudice to both parties. The criteria set out at section 33(3) are some of the factors the court will take into account when performing that balancing exercise.

For more information contact Patrick McBrien, Director on 0161 603 5236

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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