Nicholas v Ministry of Defence [31.07.13]

Wartime asbestos exposure claim allowed to proceed after death of former employee.

Implications

This decision does not mean an end to limitation defences for defendants, far from it, but it reiterates that each application for relief under s.33 is determined on the merits of the particular case.

Background

The Claimant was the daughter of Doris Timbrell. During the war years, between 1941 and 1943, Mrs Timbrell had worked for Baxters of Blackburn assembling gas masks and fitting filters into the masks. As a result, she was exposed to asbestos.

On 3 June 2004 she saw her GP with a chest infection. A subsequent x-ray revealed pleural plaques. By 2006 her condition had deteriorated. Oesphageal cancer was later diagnosed, which was unrelated to the asbestosis. She died from the cancer on 12 November 2008, aged 86.

Mrs Timbrell was advised by a doctor that she could make a claim in relation to the asbestosis on about 26 August 2004, which was the agreed date of knowledge for limitation purposes. A claim form was not issued until 14 May 2012, over four years after the limitation period had expired (taking into account an agreed moratorium period).

The Claimant asked the Court to exercise its discretion under s.33 Limitation Act to extend the limitation period. Subject to the limitation defence, liability and causation were admitted.

Decision

His Honour, Judge Burrell QC, sitting as a High Court judge, held that the claim should be allowed to proceed:

  • When considering an application under s.33, the effect of the delay on the Defendant’s ability to resist the claim on the merits was of paramount importance. In this case the Defendant could not point to any prejudice as a result of the delay.
  • The evidence showed that the decision not to issue proceedings earlier was directly related to the effects of the asbestos exposure. This caused the condition which the deceased said made her too ill and disabled to contemplate proceedings. Given her age and symptoms, that was understandable.
  • Although there had been further delay between the death and issue of proceedings, for a large part of that time the Claimant’s solicitors were pursuing the matter and the Defendant had known of the claim from June 2009.