Asbestos claim struck out as statute barred under Limitation Act 1980; Court chose not to exercise its discretion under s.33 to disapply the limitation period - Hinchliffe (Executor of the Estate of Aubrey Whitehead, deceased) v Corus UK Ltd 22.11.10
Mr Whitehead worked for Corus between 1950 and 1966. He alleged he was exposed to asbestos in sufficient quantities to cause him to suffer asbestosis. In 2002 he began to suffer breathing difficulties and in April 2002 he was referred to a specialist who commented on the link between his symptoms and history of exposure to asbestos. In December 2004 Mr Whitehead contacted solicitors in respect of his claim. He died on 15 February 2009. Proceedings were issued on 12 January 2010.
- The deceased knew that he had an injury when he consulted his general practitioner in early 2002. By April 2002 he would have known that this injury was significant, as defined in s.14(1)(a) and (2) Limitation Act 1980.
- By April 2002 the deceased knew “that the injury was attributable in whole or in part to the act or omission which is alleged to constitute negligence, nuisance or breach of duty” as defined by s.14(1)(b). The word “attributable” in this context meant being a real possibility.
- There was no dispute that by April 2002 the deceased knew that the fibrosis was caused by exposure to asbestos and the exposure had occurred during the course of his employment with Corus, so by that date the requirements of s.14(1)(c) were also satisfied.
- On the above basis, time started to run from April 2002 and the action was, therefore, statute barred by April 2005. If this was wrong, time started to run from December 2004 at the latest, that being the date when solicitors were instructed.
- The claim should not be reinstated under s.33. The Judge was highly critical of the Claimant’s solicitors and their delay in progressing matters. Had due expedition been used, proceedings would have commenced by the beginning of 2006 and the matter should have come on for trial by, at the latest, Spring 2007, which was roughly two years before Mr Whitehead died. It would then have been possible for Corus to take steps to test his evidence.
Kennedys has recently had a number of similar successes, where we have argued that, when determining the issue of s.33 discretion, an onerous burden is placed on the claimant. These cases may indicate that the limitation tide in favour of claimants has, at least to some extent, abated.
It should also be remembered that it remains possible to successfully pursue a limitation defence when breach of duty has been admitted (perhaps for commercial reasons), so long as evidence exists that the delay in commencing proceedings has caused prejudice to a defendant and this outweighs the prejudice to the claimant in not reinstating the claim. Limitation is proving an extremely important weapon in the defendant’s armoury.