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Disease: Court of Appeal considers constructive knowledge and section 33 discretion

Collins v Secretary of State for Business Innovation and Skills and Stena Line Irish Sea Ferries Ltd
Court of Appeal

Patrick McBrien reviews this Court of Appeal judgment which clarifies the definition of constructive knowledge and the court’s section 33 discretion in a disease context. The claimant who in 2002 was diagnosed as suffering from inoperable lung cancer was a former dock worker who had been exposed to asbestos. The Court of Appeal dismissed the claimant’s appeal both on the question of when the claimant had the requisite knowledge and on the issue of whether the court should have exercised its discretion to allow the claim to proceed.

Facts & first instance decision

The claimant was a former dock yard worker who was diagnosed with lung cancer in 2002 but first became aware of a possible connection between his cancer and exposure to asbestos when he saw a newspaper advertisement in July 2009. The claim form was issued in May 2012. At first instance 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 also 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. In other words, the court took into account all of the delay from exposure until the issuing of the claim, not just the delay under the Limitation Act. The court held that 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.

Basis of appeal

The claimant appealed on the basis that:

  1. The judge erred in finding that the claimant had constructive knowledge under section 14 of the Limitation Act in mid-2003. The claimant did not acquire actual or constructive knowledge until July 2009, and;

  2. The judge erred in the exercise of his Section 33 discretion, in particular by taking into account the pre-limitation period passage of time.

Court of Appeal findings

Jackson LJ, Lewison LJ and Macur LJ dismissed both grounds of appeal.

Firstly, applying the objective test under section 14(3), the judge was right that a reasonable person in the claimant’s position would have asked about the possible causes of his lung cancer by mid-2003. The claimant's medical records revealed that during 2002 he had been questioned about his lifestyle and former employment. Those questions were obviously asked for a purpose. Any reasonable person in the claimant’s position would have been prompted to inquire what light that shed on the possible causes of his cancer.

On the issue of section 33 and in particular the pre-limitation period passage of time the Court of Appeal noted that none of the relevant authorities discussed this in any detail.  Section 33(3)(b) required the court to focus specifically on the extent to which the evidence had become less cogent during the delay. The primary factors the court had to have regard to were those set out in section 33(3)(a) to (f). Parliament had singled those factors out for special mention. However, the time which elapsed between exposure and the commencement of the limitation period had to be part of "the circumstances of the case" within the meaning of section 33(3). Therefore, the court could have regard to this time period when exercising its section 33 discretion, albeit it should be given less weight than the factor specifically mentioned by Parliament. The courts should treat pre-limitation period passage of time as merely one of the relevant factors to take into account. In this case, the judge had treated the criteria set out in section 33(3)(a) to (f) as the factors of primary importance. He treated the lengthy period of historic delay as a factor in making it less equitable to extend time under section 33(1), but did not attach undue weight to that consideration. He was entitled to take that period into account as he had. The judge had carefully evaluated all the relevant factors and come to a correct conclusion under section 33.



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.

It is obviously more difficult for a defendant to establish that a claimant had “actual” knowledge, but if it cannot be established, a claimant can also 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 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 Court of Appeal held that any reasonable person in the claimant’s position would have been prompted to inquire further. For the purposes of the Limitation Act test for knowledge there was a duty on him to do so. The fact the claimant did not ask the right questions did not assist him.  At first instance, the court recognised that this placed a demanding test on the claimant - which is for deliberate policy reasons. 

Section 33

The Court of Appeal emphasised the primacy of the six criteria specifically set out at section 33(3).  These are the factors specifically listed by Parliament which the courts should consider when exercising their discretion. The judge at first instance properly considered these criteria and in particular found that the evidence was “less cogent” as a result of the delay.

It is noteworthy, in a disease context, that the Court of Appeal confirmed that the (typically) 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. 

There is perhaps a very slight difference of emphasis between the first instance and Court of Appeal judgments on this point. The Court of Appeal pointed out that both parties could rely upon that factor for different purposes. A claimant could rely on the passage of time to support his case under section 33(3)(b). He could argue that recent delay had had little or no impact on the cogency of the evidence, that the damage was done before he started being dilatory. The defendant could rely on the passage of time to show that it already faced massive difficulties in defending the action, and that any additional problems caused by the claimant's recent delay were therefore a serious matter. It was for the court to assess all of these factors. The fact remains however that overall delay from exposure is a relevant factor which the courts should take into account. In the present case the first instance judge carefully evaluated all of the relevant factors and came to a conclusion under section 33 which was “plainly correct”.

The appeal was dismissed.


For further information, please 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.