ARNOLD V CENTRAL ELECTRICITY GENERATING BOARD [1987] 3 All ER 694
FACTS:-
The Claimant was the widow and administratrix of the deceased who had been employed from 1938 to 1943 in a power station operated by a public authority, whose liabilities had since devolved onto the Defendant. In 1981 he was diagnosed as suffering from an asbestos related disease, from which he died in 1982. In 1984 the Claimant issued proceedings against the Defendant.
The Defendant pleaded that the claim had become time barred by reason of Section 21 of the Limitation Act 1939, which prescribed a limitation period of one year from the date when the action accrued in the case of actions for tort against public authorities. Therefore by 1944, the action was statute barred.
In relation to actions founded on tort against other bodies, there was a general period of six years under Section 2(1) of the 1939 Act.
Section 21 was repealed by Section 1 of the Law Reform (Limitation of Acts etc.) Act 1954 but section 7(1) of that Act expressly preserved any accrued right to plead a time bar as a defence. Although section 1(1) to (3) of the Limitation Act 1963 subsequently removed the time bar defence in ordinary personal injuries actions if the Claimant could show justifiable ignorance of his right to sue (subject to a one year time limit), Section 1(4)(a) of that Act provided any defence “available by virtue of any enactment” was not excluded by Section 1. The Limitation Act 1975 inserted 2A into the 1939 Act, which provided for the time limit to run from the accrual of the cause of action or the Claimant’s knowledge.
The question for the House of Lords was whether the subsequent legislation had retrospectively removed the time bar imposed on the Claimant’s claim by Section 21 of the 1939 Act.
JUDGMENT:-
Lord Bridge considered the present law as contained in the Limitation Act 1980.
Parargraph 9(1) of Schedule 2 to the 1980 Act provided that nothing in any provision of this Act would enable any action to be brought, which was barred by the Limitation Act 1939.
Therefore the critical question was whether anything in the series of statutes dealing with limitation of actions leading up to the 1980 consolidation, had had the effect of removing retrospectively the bar to the widow’s action against a public authority, which accrued pursuant to Section 21 of the 1939 Act.
Section 16(1) of the Interpretation Act 1978 did not, unless the contrary intention appeared affect any right, privilege, obligation or liability acquired, accrued or incurred under that enactment. In the case of Yew Bon Tew v Kenderaan Bas Mara [1982] 3 All ER 833 the Privy Council held that on the expiry of a relevant limitation period, a potential Defendant to an action acquired an “accrued right” which was not affected by the subsequent repeal of the relevant limitation period.
Section 7(1) of the Law Reform (Limitation of Actions etc.) Act 1954 provided that:-
“The time for bringing proceedings in respect of a cause of action which arose before the passing of this Act shall, if it has not then already expired, expire at the time when it would have expired apart from the provisions of this Act or at the time when it would have expired if all the provisions of this Act had at all material times been in force, whichever is the later.”
The effect of Section 7(1) of the 1954 Act was to amend section 2(1) of the 1939 Act and apply the new limitation period of three years to causes of action against public authorities which accrued within 12 months before the 4th June 1954, but not to revive any cause of action that accrued more than 12 months before that date and which was already time barred. Its effect in relation to actions for damages for personal injuries against other Defendants was to leave causes of action against other Defendants accruing between 4th June 1948 and 4th June 1954 subject to the limitation period of six years and to apply the limitation period of three years only to causes of action accruing after 4th June 1954.
In Cartledge v E Jopling & Sons Ltd [1963] 1 All ER 341 the fixed six year time limit had caused injustice, because the Claimants (who had inhaled noxious dust) could establish no breaches of duty by their employers after September 1950, and proceedings were issued in October 1956. That had led to the enactment of the Limitation Act 1963.
Lord Bridge said that in his view, the 1963 Act operated retrospectively to deprive a Defendant of an accrued time bar in respect of a claim for damages for personal injuries in which the cause of action had accrued since the 4th June 1954, and which had, therefore, been subject to the three year period of limitation introduced by the 1954 Act. That was the combined effect of Sections, 1, 6 and 15. Therefore the three year period of limitation introduced by the amended section 2(1) of the 1939 Act was no longer to be available as a defence.
However Lord Bridge found it quite unrealistic to examine in isolation the special case of the cause of action for personal injury that accrued before 1954 against a public authority entitled to the protection of section 21 of the 1939 Act (one year time limit) without considering at the same time the case of a pre 1954 cause of action in a personal injury claim accruing against an ordinary Defendant and subject therefore to the six year period of limitation as prescribed by the unamended Section 2(1) of the 1939 Act.
It would be absurd if the court attributed to the legislature an intention to give retrospective effect to the new limitation provision so as to deprive an ordinary defendant of the right to rely on a time bar accrued under the unamended provisions of the 1939 Act but leave intact the defence of a public authority acquired by virtue of the special position that public authorities previously enjoyed under Section 21 of the 1939. There should be no distinction between private and public authorities and the 1963 Act was not intended to reintroduce that distinction.
There was a Court of Appeal case Knipe v British Railways Board [1972] 1 All ER 673 which said that the 1963 Act applied retrospectively to deprive a Defendant orf an accrued six year time bar under section 2(1) of the 1939 Act. Lord Bridge said that this case was wrongly decided.
It was of course a startling proposition that the 1963 Act should fail to remove an accrued six year time bar, where the cause of action accrued before 4 June 1954 because it was intended to remedy the injustice in Cartledge. However Lord Bridge said that it could not be assumed that Parliament’s intention was shaped by the particular facts of that case.
Section 1(1) of the 1963 Act stated:-
“Section 2(1) of the Limitation Act 1939 (which in the case of certain actions, imposes a time-limit of three years for bringing the action) shall not afford any defence to an action to which this section applies, insofar as the action relates to any cause of action in respect of which----(a) the court has, whether before or after the commencement of the actions, granted leave for the purposes of this section, and (b) the requirements of subsection (3) of this section are fulfilled.”
Therefore the only time bar of which the Defendants were deprived of by this subsection was the three year time bar, which accrued under Section 2(1) of the 1939 Act as amended in 1954. There was certainly no context in section 1 that would permit the reference in Section 2(1) of the 1939 Act to be construed as a reference to that subsection as originally enacted in 1939. The words in brackets emphasised the contrary. Further support for that conclusion was found in Section 1(3) of the 1963 Act, which made no reference to any six year period of time, which was the limitation period for claims against non public bodies set down in section 2(1) of the 1939 Act.
Therefore Lord Bridge would hold that the 1963 Act did not operate to deprive any defendant of a time bar which had accrued on the expiry of the six year limitation period under the unamended Section 2(1) of the 1939 Act. If the 1963 had no effect on accrued time bars derived from the six year period of limitation under the unamended Section 2(1) of the 1939 Act, it was hardly to be expected that it was intended to have any effect on accrued time bars derived from the one year period of limitation under Section 21.
The operative provision was section 1(4)(a) of the 1963 which read:-
“Nothing in this section shall be construed as excluding or otherwise affecting (a) any defence which, in any action to which this section applies, may be available by virtue of any enactment other than section 2(1) of the Limitation Act 1939 (whether it is an enactment imposing a period of limitation or not) or by virtue of any rule of law or equity.”
The Court of Appeal below had said that Section 21 of the 1939 Act (one year rule for actions in tort against public authorities) was not “any enactment other than section 2(1)” because it had been repealed. It then went on to hold that it was a defence available by virtue of any rule of law as happened in the case of Yew Bon Tew above.
Lord Bridge would reach the same conclusion by saying simply that the defence of an accrued time bar under section 21 of the 1939 Act was available by virtue of being an “enactment other than section 2(1)” of the 1939 Act.
The Law Reform (Miscellaneous Provisions) Act 1974, section 1(1) had the effect of extending the period allowed to a Claimant by Section 1(3) of the 1963 Act from one to three years.
The only other statute that Lord Bridge would consider was the Limitation Act 1975. Section 3 of that Act contained the all important transitional provisions. Section 3(1) stated:-
“The provisions of this Act shall have effect in relation to causes of action which accrued before, as well as causes of action which accrued after, the commencement of this Act, and shall have effect in relation to any cause of action which accrued before the commencement of this Act notwithstanding that an action in respect thereof has been commenced and is pending at the commencement of this Act.”
Subsection 3(2) talked about pending actions.
Lord Bridge said that subsections sections 3(1) and (2) used the same terms as sections 6(1) and (3) of the 1963 Act. Section 3 was certainly intended to have some retrospective effect, however it must be legitimate and necessary to construe the 1975 Act in the light of the preceding legislative history. Looking at the report of the Law Reform Committee (May 1974 20th Report of the Law Reform Committee – Interim Report on Limitation of Acts: in Personal Injury Claims (Cmnd 5630)) there was not the slightest hint that the extent of the retrospective operation of the 1963 Act needed remedial action.
Therefore the Claimant’s clam would fail.
Lords Fraser, Brightman, Ackner and Oliver agreed.
FACTS:-
The Claimant was the widow and administratrix of the deceased who had been employed from 1938 to 1943 in a power station operated by a public authority, whose liabilities had since devolved onto the Defendant. In 1981 he was diagnosed as suffering from an asbestos related disease, from which he died in 1982. In 1984 the Claimant issued proceedings against the Defendant.
The Defendant pleaded that the claim had become time barred by reason of Section 21 of the Limitation Act 1939, which prescribed a limitation period of one year from the date when the action accrued in the case of actions for tort against public authorities. Therefore by 1944, the action was statute barred.
In relation to actions founded on tort against other bodies, there was a general period of six years under Section 2(1) of the 1939 Act.
Section 21 was repealed by Section 1 of the Law Reform (Limitation of Acts etc.) Act 1954 but section 7(1) of that Act expressly preserved any accrued right to plead a time bar as a defence. Although section 1(1) to (3) of the Limitation Act 1963 subsequently removed the time bar defence in ordinary personal injuries actions if the Claimant could show justifiable ignorance of his right to sue (subject to a one year time limit), Section 1(4)(a) of that Act provided any defence “available by virtue of any enactment” was not excluded by Section 1. The Limitation Act 1975 inserted 2A into the 1939 Act, which provided for the time limit to run from the accrual of the cause of action or the Claimant’s knowledge.
The question for the House of Lords was whether the subsequent legislation had retrospectively removed the time bar imposed on the Claimant’s claim by Section 21 of the 1939 Act.
JUDGMENT:-
Lord Bridge considered the present law as contained in the Limitation Act 1980.
Parargraph 9(1) of Schedule 2 to the 1980 Act provided that nothing in any provision of this Act would enable any action to be brought, which was barred by the Limitation Act 1939.
Therefore the critical question was whether anything in the series of statutes dealing with limitation of actions leading up to the 1980 consolidation, had had the effect of removing retrospectively the bar to the widow’s action against a public authority, which accrued pursuant to Section 21 of the 1939 Act.
Section 16(1) of the Interpretation Act 1978 did not, unless the contrary intention appeared affect any right, privilege, obligation or liability acquired, accrued or incurred under that enactment. In the case of Yew Bon Tew v Kenderaan Bas Mara [1982] 3 All ER 833 the Privy Council held that on the expiry of a relevant limitation period, a potential Defendant to an action acquired an “accrued right” which was not affected by the subsequent repeal of the relevant limitation period.
Section 7(1) of the Law Reform (Limitation of Actions etc.) Act 1954 provided that:-
“The time for bringing proceedings in respect of a cause of action which arose before the passing of this Act shall, if it has not then already expired, expire at the time when it would have expired apart from the provisions of this Act or at the time when it would have expired if all the provisions of this Act had at all material times been in force, whichever is the later.”
The effect of Section 7(1) of the 1954 Act was to amend section 2(1) of the 1939 Act and apply the new limitation period of three years to causes of action against public authorities which accrued within 12 months before the 4th June 1954, but not to revive any cause of action that accrued more than 12 months before that date and which was already time barred. Its effect in relation to actions for damages for personal injuries against other Defendants was to leave causes of action against other Defendants accruing between 4th June 1948 and 4th June 1954 subject to the limitation period of six years and to apply the limitation period of three years only to causes of action accruing after 4th June 1954.
In Cartledge v E Jopling & Sons Ltd [1963] 1 All ER 341 the fixed six year time limit had caused injustice, because the Claimants (who had inhaled noxious dust) could establish no breaches of duty by their employers after September 1950, and proceedings were issued in October 1956. That had led to the enactment of the Limitation Act 1963.
Lord Bridge said that in his view, the 1963 Act operated retrospectively to deprive a Defendant of an accrued time bar in respect of a claim for damages for personal injuries in which the cause of action had accrued since the 4th June 1954, and which had, therefore, been subject to the three year period of limitation introduced by the 1954 Act. That was the combined effect of Sections, 1, 6 and 15. Therefore the three year period of limitation introduced by the amended section 2(1) of the 1939 Act was no longer to be available as a defence.
However Lord Bridge found it quite unrealistic to examine in isolation the special case of the cause of action for personal injury that accrued before 1954 against a public authority entitled to the protection of section 21 of the 1939 Act (one year time limit) without considering at the same time the case of a pre 1954 cause of action in a personal injury claim accruing against an ordinary Defendant and subject therefore to the six year period of limitation as prescribed by the unamended Section 2(1) of the 1939 Act.
It would be absurd if the court attributed to the legislature an intention to give retrospective effect to the new limitation provision so as to deprive an ordinary defendant of the right to rely on a time bar accrued under the unamended provisions of the 1939 Act but leave intact the defence of a public authority acquired by virtue of the special position that public authorities previously enjoyed under Section 21 of the 1939. There should be no distinction between private and public authorities and the 1963 Act was not intended to reintroduce that distinction.
There was a Court of Appeal case Knipe v British Railways Board [1972] 1 All ER 673 which said that the 1963 Act applied retrospectively to deprive a Defendant orf an accrued six year time bar under section 2(1) of the 1939 Act. Lord Bridge said that this case was wrongly decided.
It was of course a startling proposition that the 1963 Act should fail to remove an accrued six year time bar, where the cause of action accrued before 4 June 1954 because it was intended to remedy the injustice in Cartledge. However Lord Bridge said that it could not be assumed that Parliament’s intention was shaped by the particular facts of that case.
Section 1(1) of the 1963 Act stated:-
“Section 2(1) of the Limitation Act 1939 (which in the case of certain actions, imposes a time-limit of three years for bringing the action) shall not afford any defence to an action to which this section applies, insofar as the action relates to any cause of action in respect of which----(a) the court has, whether before or after the commencement of the actions, granted leave for the purposes of this section, and (b) the requirements of subsection (3) of this section are fulfilled.”
Therefore the only time bar of which the Defendants were deprived of by this subsection was the three year time bar, which accrued under Section 2(1) of the 1939 Act as amended in 1954. There was certainly no context in section 1 that would permit the reference in Section 2(1) of the 1939 Act to be construed as a reference to that subsection as originally enacted in 1939. The words in brackets emphasised the contrary. Further support for that conclusion was found in Section 1(3) of the 1963 Act, which made no reference to any six year period of time, which was the limitation period for claims against non public bodies set down in section 2(1) of the 1939 Act.
Therefore Lord Bridge would hold that the 1963 Act did not operate to deprive any defendant of a time bar which had accrued on the expiry of the six year limitation period under the unamended Section 2(1) of the 1939 Act. If the 1963 had no effect on accrued time bars derived from the six year period of limitation under the unamended Section 2(1) of the 1939 Act, it was hardly to be expected that it was intended to have any effect on accrued time bars derived from the one year period of limitation under Section 21.
The operative provision was section 1(4)(a) of the 1963 which read:-
“Nothing in this section shall be construed as excluding or otherwise affecting (a) any defence which, in any action to which this section applies, may be available by virtue of any enactment other than section 2(1) of the Limitation Act 1939 (whether it is an enactment imposing a period of limitation or not) or by virtue of any rule of law or equity.”
The Court of Appeal below had said that Section 21 of the 1939 Act (one year rule for actions in tort against public authorities) was not “any enactment other than section 2(1)” because it had been repealed. It then went on to hold that it was a defence available by virtue of any rule of law as happened in the case of Yew Bon Tew above.
Lord Bridge would reach the same conclusion by saying simply that the defence of an accrued time bar under section 21 of the 1939 Act was available by virtue of being an “enactment other than section 2(1)” of the 1939 Act.
The Law Reform (Miscellaneous Provisions) Act 1974, section 1(1) had the effect of extending the period allowed to a Claimant by Section 1(3) of the 1963 Act from one to three years.
The only other statute that Lord Bridge would consider was the Limitation Act 1975. Section 3 of that Act contained the all important transitional provisions. Section 3(1) stated:-
“The provisions of this Act shall have effect in relation to causes of action which accrued before, as well as causes of action which accrued after, the commencement of this Act, and shall have effect in relation to any cause of action which accrued before the commencement of this Act notwithstanding that an action in respect thereof has been commenced and is pending at the commencement of this Act.”
Subsection 3(2) talked about pending actions.
Lord Bridge said that subsections sections 3(1) and (2) used the same terms as sections 6(1) and (3) of the 1963 Act. Section 3 was certainly intended to have some retrospective effect, however it must be legitimate and necessary to construe the 1975 Act in the light of the preceding legislative history. Looking at the report of the Law Reform Committee (May 1974 20th Report of the Law Reform Committee – Interim Report on Limitation of Acts: in Personal Injury Claims (Cmnd 5630)) there was not the slightest hint that the extent of the retrospective operation of the 1963 Act needed remedial action.
Therefore the Claimant’s clam would fail.
Lords Fraser, Brightman, Ackner and Oliver agreed.