Description
The Claimant had been a dockworker for the Defendants and had unloaded asbestos. He had lung cancer in 2002 that was treated successfully through radiotherapy. He instructed solicitors in 2009 and issued his claim in 2012. It was held that the Claimant did not have actual knowledge of the link between lung cancer and asbestos until 2009. However under
s.14(3) of the Limitation Act 1980 it was held that the Claimant had constructive knowledge in mid-2003 and it would have reasonable for him to have made inquiries at that point. The Claimant's personal injury claim was held to have expired in mid-2006 and determined to be time barred. It was not held equitable to disapply s.11 of the Act. The Claimant appealed this and particularly the fact that the judge had taken in to account the prejudice caused to the Defendants by the time delay from the date of his work (starting in 1947) and the date of constructive knowledge in 2003.
The Court of Appeal held that a reasonable person in the Claimant's position would have asked about causes of his lung cancer by mid-2003 (under s.14(3), applying
Johnson v Ministry of Defence [2012] EWCA Civ 1505). In 2002 he had been asked about his lifestyle and former employment and a reasonable person would have inquired about the relevance this had to possible causes of cancer. The Claimant would have known that asbestos was carcinogenic and he would have mentioned that if asked in 2002 or 2003.
Secondly, none of the authorities discussed in detail the issue of the time that had passed pre-limitation. Section 33(3)(b) required the court to focus specifically on the extent that the delay had affected the evidence. Five relevant factors had been set out in s.33(3)(a) to (f). The time delay was part of "the circumstances of the case" and one of the relevant factors but it had not been specifically mentioned by Parliament and therefore would be afforded less weight. In the instant case the judge had not attached undue weight to it as a factor and had come to the correct conclusion.
