ELLAM V ELLAM [2015] EWCA Civ 287
FACTS:-
This was an appeal from His Honour Judge Harris. The judge had given judgment for the Defendant on the preliminary issue of limitation and dismissed the action. The Claimant was the Defendant's daughter. She was born in June 1968 and was now 46 years of age. She alleged sexual abuse by the Defendant from around 1974 (when she was six) to 1982 (when she was 14). In 1974 the Claimant's family had emigrated to Canada. The Claimant disclosed the abuse to an aunt in 1979 when she returned to England, and there was an investigation by social services but no further action was taken. She attained her majority in June 1986. She made further disclosures of abuse in 1989 and 1991, when she gave evidence in support of her mother's proceedings against the Defendant for divorce. In those proceedings, the judge concluded that her evidence was true. The Defendant denied the abuse and pleaded the limitation defence.
JUDGMENT:-
Lord Justice McCombe went over the Claimant's reasons for bringing an action beforehand. She said that she first realised that she could make a claim in 1993 or 1994, but she did not take action for a number of reasons, including her desire to protect her other siblings and problems with her boyfriend. In 2001 she contacted a firm of solicitors. They referred her to a different firm, who wrote a letter before action in 2004. There was some correspondence with the Defendant's solicitors, but that petered out. The Claimant then instructed new solicitors in 2006. The Claimant was advised that her claim was statute barred because of the decision of Stubbings v Webb [1993] AC 498. Then in 2008, the Claimant's solicitor wrote to her advising her of the effect of A v Hoare [2008] 1 AC 844. These solicitors agreed to take up her claim, but it took until May 2009 to secure a policy of legal expenses insurance and in July 2009 a letter of claim was sent out. In May 2010, the Claimant's solicitors approached a consultant psychiatrist, but she was not seen until April 2011 with a second consultation in July 2011. The report that was produced came out in January 2012 but was never disclosed. A second psychiatrist was instructed and his reported was produced in June 2012 and disclosed in July 2012. Proceedings were issued in September 2012.
A Defence was filed in March 2013 and the case was transferred to the High Court and a preliminary issue on limitation ordered. Although there was medical evidence from the second psychiatrist, no application was ever made to rely on his evidence. The hearing was held in March 2014. The trial judge had referred to the following cases:-
The trial judge had described the Claimant's explanation for the delay as "clearly a not very convincing account". He felt that her date of knowledge of her potential cause of action was when she was 18. He said that the delay in the cause of action between 2001 and 2008 could be said to be reasonably attributable to the state of the law. The Claimant's anxiety around her family was a legitimate reason for delay but her relationship with her boyfriend was not. In relation to section 33(3)(a) of the Limitation Act 1980, the length of the delay, the judge said that the "very tardy" delay after 2008 was not satisfactorily explained. In relation to section 33(3)(b), the judge felt that there was some damage to the evidence caused by the passage of time. In relation to section 33(3)(e) the extent to which the Claimant acted promptly, there was a lack of promptitude in 1986, between 1993 and 2001 and after 2008 on the part of her solicitor.
McCombe LJ went on to consider the grounds of appeal. The Claimant's counsel argued that the court should place particular importance on the feature of whether a fair trial was possible in view of the delay that had passed. McCombe LJ felt that this ground of appeal was not a good one. The question of whether it was equitable to allow an action to proceed was no different from asking whether it was fair in all the circumstances for a trial to take place. That question could only be answered by reference to "all the circumstances." No factor should be given particular importance, but the importance of each factor would vary from case to case. One of those factors was the reason for the limitation period, which was to encourage Claimants to litigate their cases in a timely fashion. The judge had not misdirected himself here. Nor had he misdirected himself as to the concept of "exceptional indulgence" in waiving the limitation period, nor the balance of prejudice. Finally the judge had not erred in finding that the reasons for the delay were not adequately explained. Whilst it might have been possible to explain away some of the delay in the early period following the Claimant's majority, it was quite impossible to explain the delay after 2008. It was clearly incumbent upon the Claimant and her advisers to proceed as quickly as possible. The Claimant's counsel had argued that the delay was the fault of the solicitors referring to the case of Das v Ganju [1999] PIQR 260. McCombe LJ said that one could not read that case as indicating that a party was never to have held against him delays wholly or particular attributable to his solicitors. McCombe LJ would dismiss the appeal.
Lord Justice Lewison and Lord Justice Pitchford agreed.
1) C was employed at different times and for differing periods by both A and B, and
2) A and B were both subject to a duty to take reasonable care or to take all practicable measures to prevent C inhaling asbestos dust because of the known risk that asbestos dust (if inhaled) might caused a mesotherlioma.
3) Both A and B were in breach of that duty in relation to C during the periods of C's employment by each of tehm with the result that during both periods C inhaled excessive quantities of asbestos dust, and
4) C was found to be suffering from a mesothelioma, and
5) Any cause of C's mesothelioma other than the inhalation of asbestos dust at work could not be effectively discounted, but
6) C cannot (because of the limits of human science) prove, on the balance of probabilities, that his mesothelioma was the result of his inhaling asbestos dust during his employment by A or during his employment by B or during his employmet by A and B taken together..
Lord Bingham reviewed the various propositions as to tortious causation. He did not think that the House of Lords was acting contrary to principle in reviewing the applicability of the conventional test to cases such as the present. He then reviewed the following authorities:-
Lord Bingham then considered the jurisprudence of other countries.
Lord Bingham said that where conditions 1 to 6 were satisfied, then C was entitled to recover against both A and B. It was just to treat the conduct of A and B in exposing C to a risk to which he should not have been exposed as as making a material contribution to the contracting by C of a condition lagainst which it was the duty of A and B to protect him.
Lord Nicholls agreed. He said that in the normal way, in order to recover damages for negligence, a Claimant must prove that but for the Defendant's wrongful conduct he would not have sustained the loss in question. Exceptionally this was not so. In some circumstances, a lesser degree of causal connection would suffice. This would be a case where no one could tell from which tortfeasor the damage flowed. Lord Nicholls gave the example of two hunters firing two guns and an innocent passer by being injured. No-one could tell from which gun the pellet came from. It would be unjust if the law of negligence left the Clamant without remedy. The unattractive consequence, that one of the negligent would be held liable for an injury he did not in fact inflict, was outweighed by the even less attractive alternative that the innocent Claimant should receive no recompense even though one of the negligent hunted injured him. It was this balance that involved a relaxation in the standard of causation required. Hunting in a careless manner and thereby creating a risk of injury to others, followed by injury to another person, was regarded by the law as sufficient causal connection in the circumstances to found responsibility.
Lord Hoffman
FACTS:-
This was an appeal from His Honour Judge Harris. The judge had given judgment for the Defendant on the preliminary issue of limitation and dismissed the action. The Claimant was the Defendant's daughter. She was born in June 1968 and was now 46 years of age. She alleged sexual abuse by the Defendant from around 1974 (when she was six) to 1982 (when she was 14). In 1974 the Claimant's family had emigrated to Canada. The Claimant disclosed the abuse to an aunt in 1979 when she returned to England, and there was an investigation by social services but no further action was taken. She attained her majority in June 1986. She made further disclosures of abuse in 1989 and 1991, when she gave evidence in support of her mother's proceedings against the Defendant for divorce. In those proceedings, the judge concluded that her evidence was true. The Defendant denied the abuse and pleaded the limitation defence.
JUDGMENT:-
Lord Justice McCombe went over the Claimant's reasons for bringing an action beforehand. She said that she first realised that she could make a claim in 1993 or 1994, but she did not take action for a number of reasons, including her desire to protect her other siblings and problems with her boyfriend. In 2001 she contacted a firm of solicitors. They referred her to a different firm, who wrote a letter before action in 2004. There was some correspondence with the Defendant's solicitors, but that petered out. The Claimant then instructed new solicitors in 2006. The Claimant was advised that her claim was statute barred because of the decision of Stubbings v Webb [1993] AC 498. Then in 2008, the Claimant's solicitor wrote to her advising her of the effect of A v Hoare [2008] 1 AC 844. These solicitors agreed to take up her claim, but it took until May 2009 to secure a policy of legal expenses insurance and in July 2009 a letter of claim was sent out. In May 2010, the Claimant's solicitors approached a consultant psychiatrist, but she was not seen until April 2011 with a second consultation in July 2011. The report that was produced came out in January 2012 but was never disclosed. A second psychiatrist was instructed and his reported was produced in June 2012 and disclosed in July 2012. Proceedings were issued in September 2012.
A Defence was filed in March 2013 and the case was transferred to the High Court and a preliminary issue on limitation ordered. Although there was medical evidence from the second psychiatrist, no application was ever made to rely on his evidence. The hearing was held in March 2014. The trial judge had referred to the following cases:-
- Sayers v Hunters [2013] 1 WLR 1695
- KR v Bryn Alyn [2003] QB 1441
- Horton v Sadler [2007] 1 AC 307
The trial judge had described the Claimant's explanation for the delay as "clearly a not very convincing account". He felt that her date of knowledge of her potential cause of action was when she was 18. He said that the delay in the cause of action between 2001 and 2008 could be said to be reasonably attributable to the state of the law. The Claimant's anxiety around her family was a legitimate reason for delay but her relationship with her boyfriend was not. In relation to section 33(3)(a) of the Limitation Act 1980, the length of the delay, the judge said that the "very tardy" delay after 2008 was not satisfactorily explained. In relation to section 33(3)(b), the judge felt that there was some damage to the evidence caused by the passage of time. In relation to section 33(3)(e) the extent to which the Claimant acted promptly, there was a lack of promptitude in 1986, between 1993 and 2001 and after 2008 on the part of her solicitor.
McCombe LJ went on to consider the grounds of appeal. The Claimant's counsel argued that the court should place particular importance on the feature of whether a fair trial was possible in view of the delay that had passed. McCombe LJ felt that this ground of appeal was not a good one. The question of whether it was equitable to allow an action to proceed was no different from asking whether it was fair in all the circumstances for a trial to take place. That question could only be answered by reference to "all the circumstances." No factor should be given particular importance, but the importance of each factor would vary from case to case. One of those factors was the reason for the limitation period, which was to encourage Claimants to litigate their cases in a timely fashion. The judge had not misdirected himself here. Nor had he misdirected himself as to the concept of "exceptional indulgence" in waiving the limitation period, nor the balance of prejudice. Finally the judge had not erred in finding that the reasons for the delay were not adequately explained. Whilst it might have been possible to explain away some of the delay in the early period following the Claimant's majority, it was quite impossible to explain the delay after 2008. It was clearly incumbent upon the Claimant and her advisers to proceed as quickly as possible. The Claimant's counsel had argued that the delay was the fault of the solicitors referring to the case of Das v Ganju [1999] PIQR 260. McCombe LJ said that one could not read that case as indicating that a party was never to have held against him delays wholly or particular attributable to his solicitors. McCombe LJ would dismiss the appeal.
Lord Justice Lewison and Lord Justice Pitchford agreed.
1) C was employed at different times and for differing periods by both A and B, and
2) A and B were both subject to a duty to take reasonable care or to take all practicable measures to prevent C inhaling asbestos dust because of the known risk that asbestos dust (if inhaled) might caused a mesotherlioma.
3) Both A and B were in breach of that duty in relation to C during the periods of C's employment by each of tehm with the result that during both periods C inhaled excessive quantities of asbestos dust, and
4) C was found to be suffering from a mesothelioma, and
5) Any cause of C's mesothelioma other than the inhalation of asbestos dust at work could not be effectively discounted, but
6) C cannot (because of the limits of human science) prove, on the balance of probabilities, that his mesothelioma was the result of his inhaling asbestos dust during his employment by A or during his employment by B or during his employmet by A and B taken together..
Lord Bingham reviewed the various propositions as to tortious causation. He did not think that the House of Lords was acting contrary to principle in reviewing the applicability of the conventional test to cases such as the present. He then reviewed the following authorities:-
- Bonnington Castings Ltd v Wardlaw [1956] AC 613
- Nicholson v Atlas Steel Foundry and Engineering Co. Ltd. [1957] 1 WLR 613
- Gardiner v Motherwell Machinery and Scrap Co. Ltd [1961] 1 WLR 1424
- McGhee v National Coal Board [1973] 1 WLR 1
Lord Bingham then considered the jurisprudence of other countries.
Lord Bingham said that where conditions 1 to 6 were satisfied, then C was entitled to recover against both A and B. It was just to treat the conduct of A and B in exposing C to a risk to which he should not have been exposed as as making a material contribution to the contracting by C of a condition lagainst which it was the duty of A and B to protect him.
Lord Nicholls agreed. He said that in the normal way, in order to recover damages for negligence, a Claimant must prove that but for the Defendant's wrongful conduct he would not have sustained the loss in question. Exceptionally this was not so. In some circumstances, a lesser degree of causal connection would suffice. This would be a case where no one could tell from which tortfeasor the damage flowed. Lord Nicholls gave the example of two hunters firing two guns and an innocent passer by being injured. No-one could tell from which gun the pellet came from. It would be unjust if the law of negligence left the Clamant without remedy. The unattractive consequence, that one of the negligent would be held liable for an injury he did not in fact inflict, was outweighed by the even less attractive alternative that the innocent Claimant should receive no recompense even though one of the negligent hunted injured him. It was this balance that involved a relaxation in the standard of causation required. Hunting in a careless manner and thereby creating a risk of injury to others, followed by injury to another person, was regarded by the law as sufficient causal connection in the circumstances to found responsibility.
Lord Hoffman