Hoey v Sir Robert Lloyd & Co Ltd and others [09.09.11]
Court of Appeal upholds decision that claim was commenced within three years of date of knowledge. The Claimant, now aged 79, was employed by the five defendant companies in various capacities between 1947 and 1992. In the course of this he was exposed on many occasions to asbestos. In the 1980s he developed chest pains and went to see his GP who referred him to a chest clinic. Subsequently his condition generally improved and he was discharged in 1987. In 1992 he was having breathing difficulties and retired on grounds of ill health. In August 2007, he was referred back to hospital and was subsequently (in December 2008) diagnosed with lung disease. Proceedings were issued on 13 August 2010.
Lord Justice Jackson held that the claim had been properly commenced within three years of the date of knowledge under s.11(4)(b) Limitation Act 1980. Consideration of the evidence supported the view formed by the trial Judge that what the Claimant suffered during the 1980s was "a transient bout of chest pain" and that he did not know he had suffered a significant injury until 2008:
- In February 1984 and July to September 1985 the Claimant suffered chest pains, but was unaware that these were symptomatic of any underlying injury. There was no failure by the Claimant to seek professional help.
- In January 1986 the Claimant had been pain free for four months but was advised of the possibility that he had developed mesothelioma as a result of encountering asbestos in his work. The Claimant had not in fact developed mesothelioma and the scare soon passed.
- Pleural thickening and pleural shadowing had been revealed on X-rays but the Claimant was not told about these matters and the doctors believed (wrongly) that these did not constitute a significant injury.
The status quo is maintained. A court will not criticise a claimant who has sought medical advice promptly and appropriately, albeit the medical advice was flawed.
The key questions in relation to limitation remain:
- When did the claimant first have a significant injury?
- When did the claimant know or when ought he to have known he had a significant injury?
- When did the claimant know or when ought he to have known such injury was attributable to occupational exposure?