Introduction
Background
Facts
Supreme Court judgment
Comment
Product liability cases in the United Kingdom usually involve claims for compensation for personal injuries sustained as a result of use of a defective product. Claims are often brought many years after the product was originally marketed, particularly in the case of certain types of product, such as medicines and chemicals, which may have effects that become manifest only many years after use.
In what now becomes the leading case, the Supreme Court has considered the law of limitation in claims involving personal injuries in Ministry of Defence v AB.(1) The judgment provides important guidance on how those rules would be applied in the context of product liability claims relating to exposures many years previously and in multi-party claims managed as group actions. It also addresses the law of causation, as the strength of the claimants' case on the merits was one of the factors considered by the court in determining whether to exercise its discretion to disapply the limitation period and permit the claims to proceed.
The Limitation Act 1980 provides that claims in respect of personal injuries must be brought within three years of the date on which the cause of action accrued or the date of knowledge of the person injured. 'Knowledge' is defined in Section 14(1) as the date on which the claimant has knowledge of certain facts, including:
- the fact that the injury in question was significant;
- the identity of the defendant; and
- the fact that the injury was attributable in whole or part to the act or omission which was alleged to constitute the negligence, nuisance or breach of duty.
The court also has residual discretion under Section 33 to permit a claim to proceed out of time if it is equitable to do so, having regard to the prejudice that might be suffered by the parties if the case is, or is not, allowed to proceed.
Between 1952 and 1958 the government carried out atmospheric tests of thermonuclear devices in the South Pacific. Proceedings were brought by, or on behalf of, approximately 1,000 former servicemen who claimed that they had suffered illness, disability or death as a result of exposure to ionising radiation from the tests. The proceedings, known as the Atomic Veterans litigation, were managed under a group litigation order because they gave rise to common or related issues of law or fact.
The defendant alleged that many of the claims were time barred under the Limitation Act, in that the actions were brought more than three years after the date of knowledge of the injured person that the injury was attributable to the defendant's acts. The limitation issues were tried as a preliminary issue in a trial of selected test cases. The veterans alleged that the claims were not time barred because they did not have the requisite knowledge for limitation purposes until the publication of a report by an expert, Dr Rowland, in June 2007, which they claimed for the first time provided support for the allegations that they had been exposed to ionising radiation during the testing. The report was published after many of the claimants had commenced proceedings.
By a majority of four to three, the Supreme Court decided that the test claims were time barred. The court held that knowledge of attribution is likely to be established where a claimant's subjective belief that his or her injury is capable of being attributed to the alleged breach of duty is held with sufficient confidence to make it reasonable for the claimant to begin to investigate whether he or she has a valid claim. The court concluded that where a claimant has issued proceedings, he or she has - by that fact - acquired the requisite degree of knowledge. Although it did not follow automatically that a claimant will possess the required knowledge by the date on which he or she first took legal advice, such an inference might be justified. A claimant will not always have acquired knowledge after first consulting an expert, although some facts may be ascertained only with the benefit of expert advice.
Applying this legal test to the facts of the test cases, the court concluded that in each case, the test claimant had acquired the required knowledge three years before commencement of proceedings, in that the claimants each reasonably believed that their injuries were capable of being attributed to the nuclear tests, even in the absence of cogent evidence to justify their belief. The court distinguished between knowledge of the "essence" of the claim and the evidence necessary to prove it to the required legal standards, and concluded that the Rowland report was evidential, rather than assisting the veterans in acquiring knowledge of the essence of their claim. Critically, the court concluded that once the requisite knowledge of the essence of the claim had arisen, evidential difficulties in proving the claim did not give rise to a further, open-ended extension of the limitation period. The date of publication of the Rowland report did not, therefore, determine when the limitation period started to run: the crucial question was when the claimants themselves came to believe that their injuries had been caused by exposure to ionising radiation during the nuclear testing.
The court then went on to consider what factors should be taken into account in assessing whether to exercise its discretion under Section 33 of the Litigation Act. The court ruled by a majority (a minority declining to decide the issue) that the Court of Appeal had not wrongly exercised its discretion by treating the merits of the claims and their prospects of success as determinative in deciding whether to disapply the limitation period. All of the judges considered that the claimants would face very significant difficulties in establishing causation at trial. It was accepted by the claimants that the current scientific evidence was insufficient to establish causation and it would be necessary to extend the existing law, applying the decision in Fairchild v Glenhaven Funeral Services Limited,(2) so that causation could be established where the defendant had materially increased the risk of injury. The court rejected this proposal and made clear that the Fairchild decision was an exception to the standard rules on causation, which applied in limited circumstances to cases involving claims of mesothelioma. In these circumstances, the majority considered that it would have been absurd for the court to exercise its discretion to allow the claims to proceed when they had no reasonable prospect of success.
The Supreme Court also ruled by a majority that limitation should be assessed on an individual case basis; the fact that the claims were part of a group action, which included some non-time barred claims, was irrelevant.
The Supreme Court decision is likely to provide some comfort to manufacturers and suppliers of consumer products that the issue of limitation is not entirely open-ended. The court made clear that it will not relax the statutory test for limitation (which already includes flexibility through the elements of knowledge and discretion) and permit claims to proceed many years after a claimant has reasonably held the belief that his or her injuries were caused by a breach of duty. In the past, product liability actions - such as the MMR/MR Vaccination group litigation, which involved claims made by or on behalf of children who claimed to have sustained injuries as a result of vaccination - have been brought against a background of evolving scientific evidence, where the claimants and their lawyers have sought to carry out additional scientific study and investigation after the commencement of proceedings, in order to prove their case on causation. The Supreme Court decision clarifies that where proceedings are commenced after the expiry of the basic three-year limitation period for personal injury claims, the need to collect further evidence does not give rise to a further open-ended extension of the limitation period while that additional evidence is collected.
The court's approach to deciding limitation where claims are being pursued as part of a group action also has significant implications for product liability claims. The claimants in the Atomic Veterans litigation had argued that because the group included other non-time-barred cases that the government would have to defend in any event, there was no real prejudice to them in permitting the time-barred claims to proceed. By ruling that the court will take an individual case approach to the determination of limitation in test cases tried as part of a group action, the court has strengthened the ability of a defendant company, faced with a product liability claim, to pursue a limitation defence in the context of group litigation.
For further information on this topic please contact Alison Brown at Arnold Porter LLP by telephone (+44 20 7786 6100), fax (+44 20 7786 6299) or email
([email protected]).
Endnotes