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:
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;
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.
For further information, please contact Patrick McBrien, Director on 0161 603 5236.
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