Court of Appeal decides whether court can take account of the claimant’s delay from date of exposure to asbestos when deciding whether to disallow limitation period

The claimant worked as a dockworker between 1947 and 1967. He assisted in unloading cargos of asbestos during that time and was diagnosed with lung cancer in May 2002 (from which he subsequently recovered). After seeing an advert in July 2009, he contacted solicitors and commenced proceedings in May 2012. At first instance, the judge held that his claim was time barred and he appealed. The Court of Appeal has now dismissed that appeal.

The Court of Appeal agreed with the judge that the claimant ought to have inquired about the possible causes of his lung cancer by mid-2003. If he had have inquired, his doctor would have mentioned his exposure to asbestos. Accordingly, he had had constructive knowledge of a possible link between his cancer and his exposure to asbestos by that time and so his claim was brought outside of the six year limitation period.

The judge had refused to exercise his discretion under section 33 of the Limitation Act 1980 to disapply the limitation period. Section 33 provides that the court shall have regard to “all the circumstance of the case”, including (a) the length and reason for the delay; and (b) the extent to which the evidence is, or is likely to be, less cogent than if the action had been brought in time. 

In reaching his decision, the judge had taken into account delay occurring since 1947 and the principal question of law in the appeal was whether he had been entitled to do so. Although prior caselaw had considered whether delay prior to expiry of the limitation period can be taken into account, it has not done so at any length and nor has it considered the position for long tail industrial disease claims. Jackson LJ noted that there is caselaw authority for the principle that the court can take account of delay before the date of actual or constructive knowledge. However, he said that “it would be absurd if the defendant could rely upon all the prejudice accruing from the date when the breaches of duty occurred, alternatively from the date when (unknowingly) the claimant suffered injury... Loss of cogency of evidence during the limitation period must be a factor which carries more weight than … the loss of cogency of evidence before the limitation clock starts to tick”. Therefore: “although the court will have regard to time elapsed before the claimant’s date of knowledge, the court will accord less weight to this factor. It will treat pre-limitation period effluxion of time as merely one of the relevant factors to take into account”.

Here, there had been a time lag between breach and causation of injury and then a further delay before the date of constructive knowledge and so it was not possible to characterise the claimant’s inactivity over the entire period since 1947 as “dilatoriness”. However, the judge had not given undue weight to historic delays when reaching his decision. Furthermore, inconsistencies in the claimant’s three witness statements did not only harm the claimant’s own case, it also made it difficult for the defendants to deal with the relevant issues. The Court of Appeal held that judge had been “obviously correct”.