NICHOLAS V MINISTRY OF DEFENCE [2013] EWHC 2351 (QB)
Surrey Personal Injury website and Child Abuse website - Limitation
FACTS:-
The Claimant was the daughter and executrix of the estate of the deceased, who died on the 23rd November 2008 aged 86. During the war years between 1941 and 1943 she worked for Baxters of Blackburn assembling gas masks, and was exposed to asbestos. He had a chest infection in June 2004, which worsened. In April 2005 a chest X ray showed bilateral calcified pleural plaques and pulmonary fibrosis over her lungs. By 2006, her breathlessness was deteriorating and eventually at times, she had to use an oxygen cylinder. During the last few years of her life, the Claimant shopped, cooked and cleaned for her. In September 2008, she was showing symptoms of a cancer and losing weight. By October, she had lost 2 stone in weight. Oesophageal cancer was eventually diagnosed. This was unrelated to the asbestosis and she died from the cancer (not the asbestosis).
JUDGEMENT:-
His Honour Judge Burrell QC said that it was agreed that she was advised by a doctor that she could make a claim in relation to the asbestosis on or about the 26th August 2004 and that was the agreed date of knowledge for limitation purposes. Thus the claim was statute barred 3 years later on 26.8.07. That was 1 year and 3 months before her death. After her death, the Claimant took legal advice (in February 2009) and after the inquest in March 2009 which held that death was due to industrial disease,the claim was first notified to the defendant on 4.6.09. Solicitors for the claimant began collecting evidence and instructing an expert. Proceedings began on the 14th May 2012. The claim was thus statute barred and the Claimant sought relief pursuant to section 33 of the Limitation Act 1980. Although the Defendant could point to no prejudice as a result of the delay, it was argued that it would inequitable to apply the dispensations provisions of the Act, bearing in mind all the circumstances of the case.
As the deceased died after expiry of the limitation period the special time limit for actions in respect of personal injury (accruing for the benefit of the estate under Law Reform (Miscellaneous Provisions) Act 1934) referred to in section 11 of the Limitation Act 1980 did not apply. This would have been 3 years from the date of death. There was delay therefore from date of expiry of limitation period on the 26th August 2007 (3 years from agreed date of deceased's knowledge) and 14th May 2012 when proceedings were issued. A moratorium period had been agreed between the solicitors for both sides from 23rd November 2011 to the 23rd May 2012. Accordingly the delay from expiry of the limitation period to the first day of the moratorium was a period of 4 years 3 months approximately. Part of the overall delay was due to the deceased taking no action from her date of knowledge on the 27th August 2004 and and part was due to the Claimant failing to commence proceedings after date of death on the 23rd November 2009. The overall period of delay from date of knowledge to date proceedings commenced less moratorium period was 7 years 3 months approximately.
Burrell J considered section 33 of the 1980 Act. Section 33(3) required the court to take into account all the circumstances of the case when exercising the general discretion in deciding whether it would be equitable to allow the action to proceed including in particular:
i) the length and reasons for the delay on the part of the deceased and Claimant;
ii) The effect of the delay on the cogency of the evidence;
iii) The conduct of the defendant after the cause of action arose;
iv) The duration of any disability of the claimant arising after the accrual of the cause of action;
v) The extent to which the claimant acted promptly and reasonably once he knew the breach of the defendant causing the injury might be capable at that time of giving rise to an action for damages;
vi) The diligence on the part of the Claimant in obtaining expert advice;
Liability and causation are agreed, subject to the limitation defence. The Claimant stated in her witness statement that her mother did not feel up to bringing a claim. The Claimant's son persuaded her to put in a claim for industrial injuries disablement benefit. As to the prospect of suing the defendant, the mother wanted to pursue a case as she felt hard done by the Defendant in causing her to contract the illness but felt she was too ill to actually instruct solicitors, provide statements and see medical experts. It is agreed this part of the criteria involved a subjective test. (Coad v Cornwall [1997] 1 WLR 189).
As to the Claimant's own delay after the death of her mother, she took legal advice and the claim was pursued with the letter of claim going out on the 4th June 2009. The claim commenced on the 14th May 2012. Over that period solicitors for the claimant were dealing with the matter. They were no doubt collecting the evidence upon which this type of claim depends.
Burrell J referred to the following cases:-
Although there was further delay from death to issue of proceedings, for a large part of that time, solicitors for the Claimant were pursuing the matter and the Defendant had known of the claim from the 4th June 2009. There was no suggestion on the part of the Defendant that the Claimant's solicitors had been negligent. However in Roberts v The Commissioner of Police of the Metropolis [2012] EWCA Civ 799 it had been said that where no such prejudice existed then the fact that the Claimant might have an alternative right to recovery in the form of a claim against his solicitors for negligence was unlikely to be determinative.
There being no prejudice to the Defendant in the overriding of the limitation period, a fair trial on quantum was possible. The requirement to show prejudice was of course by no means an overriding one but it was obviously very important. As to the loss of the limitation defence being prejudice in itself, it had been held in previous cases that this was balanced by the prejudice to the Claimant were the dispensation provisions not to be applied.
Burrell J said that he took the view that it would be equitable to allow this action to proceed and he was prepared to direct that the limitation provisions of the 1980 Act should not apply to the action, pursuant to Section 33(1).
An appropriate award for pain, suffering and loss of amenity would be £40,000 and £7,657 for care.
Surrey Personal Injury website and Child Abuse website - Limitation
FACTS:-
The Claimant was the daughter and executrix of the estate of the deceased, who died on the 23rd November 2008 aged 86. During the war years between 1941 and 1943 she worked for Baxters of Blackburn assembling gas masks, and was exposed to asbestos. He had a chest infection in June 2004, which worsened. In April 2005 a chest X ray showed bilateral calcified pleural plaques and pulmonary fibrosis over her lungs. By 2006, her breathlessness was deteriorating and eventually at times, she had to use an oxygen cylinder. During the last few years of her life, the Claimant shopped, cooked and cleaned for her. In September 2008, she was showing symptoms of a cancer and losing weight. By October, she had lost 2 stone in weight. Oesophageal cancer was eventually diagnosed. This was unrelated to the asbestosis and she died from the cancer (not the asbestosis).
JUDGEMENT:-
His Honour Judge Burrell QC said that it was agreed that she was advised by a doctor that she could make a claim in relation to the asbestosis on or about the 26th August 2004 and that was the agreed date of knowledge for limitation purposes. Thus the claim was statute barred 3 years later on 26.8.07. That was 1 year and 3 months before her death. After her death, the Claimant took legal advice (in February 2009) and after the inquest in March 2009 which held that death was due to industrial disease,the claim was first notified to the defendant on 4.6.09. Solicitors for the claimant began collecting evidence and instructing an expert. Proceedings began on the 14th May 2012. The claim was thus statute barred and the Claimant sought relief pursuant to section 33 of the Limitation Act 1980. Although the Defendant could point to no prejudice as a result of the delay, it was argued that it would inequitable to apply the dispensations provisions of the Act, bearing in mind all the circumstances of the case.
As the deceased died after expiry of the limitation period the special time limit for actions in respect of personal injury (accruing for the benefit of the estate under Law Reform (Miscellaneous Provisions) Act 1934) referred to in section 11 of the Limitation Act 1980 did not apply. This would have been 3 years from the date of death. There was delay therefore from date of expiry of limitation period on the 26th August 2007 (3 years from agreed date of deceased's knowledge) and 14th May 2012 when proceedings were issued. A moratorium period had been agreed between the solicitors for both sides from 23rd November 2011 to the 23rd May 2012. Accordingly the delay from expiry of the limitation period to the first day of the moratorium was a period of 4 years 3 months approximately. Part of the overall delay was due to the deceased taking no action from her date of knowledge on the 27th August 2004 and and part was due to the Claimant failing to commence proceedings after date of death on the 23rd November 2009. The overall period of delay from date of knowledge to date proceedings commenced less moratorium period was 7 years 3 months approximately.
Burrell J considered section 33 of the 1980 Act. Section 33(3) required the court to take into account all the circumstances of the case when exercising the general discretion in deciding whether it would be equitable to allow the action to proceed including in particular:
i) the length and reasons for the delay on the part of the deceased and Claimant;
ii) The effect of the delay on the cogency of the evidence;
iii) The conduct of the defendant after the cause of action arose;
iv) The duration of any disability of the claimant arising after the accrual of the cause of action;
v) The extent to which the claimant acted promptly and reasonably once he knew the breach of the defendant causing the injury might be capable at that time of giving rise to an action for damages;
vi) The diligence on the part of the Claimant in obtaining expert advice;
Liability and causation are agreed, subject to the limitation defence. The Claimant stated in her witness statement that her mother did not feel up to bringing a claim. The Claimant's son persuaded her to put in a claim for industrial injuries disablement benefit. As to the prospect of suing the defendant, the mother wanted to pursue a case as she felt hard done by the Defendant in causing her to contract the illness but felt she was too ill to actually instruct solicitors, provide statements and see medical experts. It is agreed this part of the criteria involved a subjective test. (Coad v Cornwall [1997] 1 WLR 189).
As to the Claimant's own delay after the death of her mother, she took legal advice and the claim was pursued with the letter of claim going out on the 4th June 2009. The claim commenced on the 14th May 2012. Over that period solicitors for the claimant were dealing with the matter. They were no doubt collecting the evidence upon which this type of claim depends.
Burrell J referred to the following cases:-
- Hartley v Birmingham City District Council [1992] 1WLR 968
- Cain v Francis [2009] QB 754,
- EB v Haughton [2011] EWHC 279 (QB)
Although there was further delay from death to issue of proceedings, for a large part of that time, solicitors for the Claimant were pursuing the matter and the Defendant had known of the claim from the 4th June 2009. There was no suggestion on the part of the Defendant that the Claimant's solicitors had been negligent. However in Roberts v The Commissioner of Police of the Metropolis [2012] EWCA Civ 799 it had been said that where no such prejudice existed then the fact that the Claimant might have an alternative right to recovery in the form of a claim against his solicitors for negligence was unlikely to be determinative.
There being no prejudice to the Defendant in the overriding of the limitation period, a fair trial on quantum was possible. The requirement to show prejudice was of course by no means an overriding one but it was obviously very important. As to the loss of the limitation defence being prejudice in itself, it had been held in previous cases that this was balanced by the prejudice to the Claimant were the dispensation provisions not to be applied.
Burrell J said that he took the view that it would be equitable to allow this action to proceed and he was prepared to direct that the limitation provisions of the 1980 Act should not apply to the action, pursuant to Section 33(1).
An appropriate award for pain, suffering and loss of amenity would be £40,000 and £7,657 for care.