Collins v Secretary of State for Business Innovation and Skills and Stena Line Irish Sea Ferries Ltd 02.05.13

Claim for lung cancer should not proceed on limitation grounds; date of constructive knowledge considered.

Implications

This case applies the recent Court of Appeal decision in Johnson v Ministry of Defence [2012], where Kennedys acted for the Defendant. A claimant cannot rely on his ignorance of the cause of a medical condition if a reasonable person, faced with the same symptoms, would have sought advice in this regard at an earlier date.

Background

Between 1947 and 1967 the Claimant was a dockworker in the London docks. He alleged that he was exposed to asbestos whilst unloading bags of asbestos from ships.

In May 2002, at the age of 77, he was diagnosed with lung cancer. His condition was thought to be terminal but treatment brought the cancer under control. He claimed that he first became aware that there might be a connection between his cancer and his exposure to asbestos when he saw an advert in the Daily Mail in July 2009 placed by his solicitors. The claim form was issued in May 2012.

Decision

Mr Justice Nicol dismissed the claim on limitation grounds:

  • Actual knowledge: The Claimant did not have actual knowledge of the possible link between his lung cancer and the exposure to asbestos until July 2009 when the advert was published. At the time of his diagnosis the subject of his work with asbestos was raised on at least one occasion. However, it was understandable that, at that time, attention was focussed on his prognosis and care.
  • Constructive knowledge: The diagnosis of lung cancer was of sufficient significance that it would have prompted natural curiosity as to its cause in the mind of a reasonable man. The Claimant's past smoking was not a reason for not making inquiries about the cause of the lung cancer. A reasonable man in the Claimant’s position would have known, in a general way, that asbestos was hazardous to health. Allowing for "thinking time" and response time from doctors, the Claimant would have had constructive knowledge by the middle of 2003.
  • Should limitation be extended? Nicol J refused to exercise his power under s.33 Limitation Act 1980 to extend time. Even against a background of a lengthy lapse of time before the primary limitation period expired, there would still be further prejudice to the Defendants from the Claimant’s additional delay. In addition, the claim had significant weaknesses and was not for a particularly large sum.