David Platt QC, Claire Toogood & Colin Nixon win in CA on industrial disease limitation defence
David Platt QC, Claire Toogood and Colin Nixon succeed on an “issue of seminal importance in relation to long tail industrial disease claims”
On 23 May 2014 the Court of Appeal upheld the decision of Nicol J in the case of Collins v The Secretary of State for Business, Innovation and Skills and Stena Line Irish Sea Ferries Ltd that the Claimant’s claim for damages for lung cancer was statute-barred.
The Claimant had worked as a dockworker in Tilbury Docks between 1947 and 1967. He alleged that he was exposed to asbestos during this period and that this was the cause of his lung cancer, which was diagnosed in 2002. He was given palliative chemotherapy which proved to be curative, but he did not instruct solicitors until 2009 after his wife had read an advertisement placed in the Daily Mail by Corries. Proceedings were not issued until 2012 and both Defendants argued that the claim was time-barred.
The Court of Appeal, applying Johnson v Ministry of Defence, agreed with Nicol J that the Claimant had constructive knowledge in 2003. A reasonable person in the Claimant’s position would have asked about the possible causes of his lung cancer by this time and it was inconceivable that his doctors would not have mentioned asbestos as a possible cause.
The Court of Appeal went on to hold that Nicol J was correct in declining to extend time under section 33 of the Limitation Act 1980. The crucial issue was whether the judge was entitled to take into account the “passage of time” between the alleged breach of duty and the commencement of the limitation period, which could not be characterized as “dilatoriness”. Jackson LJ, with whom Lewison and Macur LJJ agreed, held that this period of time must be part of the circumstances of the case within section 33(3), but it carries less weight than the factors set out in paragraphs 33(3)(a) to (f).
The suggestion by the Court of Appeal that both parties may rely on prejudice accruing before the commencement of the limitation period for different purposes raises the prospect of further litigation on this point. The claimant will argue that any post-limitation prejudice is de minimis in the context of the overall delay, whereas a defendant will argue that post-limitation prejudice must weigh very heavily in cases where there is already substantial prejudice.
The absence of any reasonable explanation for additional delay may well be a factor which tips the balance in the defendant’s favour.
David Platt QC and Claire Toogood were instructed by BLM.
Colin Nixon was instructed by DAC Beachcroft LLP.