Although the opportunity to use it seldom arises these days, there is a tool at the bottom of a disease lawyer’s toolbox which is still useful and effective, the Arnold limitation defence.

The Arnold defence accrues under the Limitation Act 1939. It arises out of a decision of the House of Lords in a mesothelioma claim, Arnold v Central Electricity Generating Board [1987]. The defence will only operate in certain (and now fairly rare) circumstances, but its continuing validity was confirmed by the House of Lords in McDonnell v Congregation of Christian Brothers Trustees [2003] (an abuse case).

Arnold v Central Electricity Generating Board

In 1981 Mr Arnold was found to have mesothelioma. He died in May 1982. In 1984 his widow brought claims under the Law Reform (Miscellaneous Provisions) Act 1934 and the Fatal Accidents Act 1976 alleging that the deceased’s mesothelioma was caused by his negligent occupational exposure to asbestos between 1938 and 1943.

The Defendant pleaded a limitation defence under s.1 Public Authorities Protection Act 1893 and s.21 Limitation Act 1939 on the basis that the deceased had failed to bring a claim within 12 months of the date on which his cause of action accrued.

The House of Lords held that:

  • In a mesothelioma claim, the cause of action accrued when respirable asbestos fibres were ingested.
  • There is a presumption that a statute which affects substantive rights is not to be construed as having retrospective operation unless it is manifest that this was its intention. On the repeal of s.21 of the 1939 Act, the accrued right to plead a one year time bar had been expressly preserved by s.7 of the Law Reform (Limitation of Actions etc) Act 1954 in respect of actions accruing before 4 June 1954.
  • The right to plead a time bar, which had accrued under the 1939 Act was also expressly preserved by s.1(4) Limitation Act 1963.  

Comment

A disease lawyer/claims handler should be alert to the fact that where any new mesothelioma claim is notified where there is an allegation of culpable exposure ending before 4 June 1954, the defendant will be entitled to rely on Arnold and plead a limitation defence under the 1939 Act.