Collins v Secretary of State for Business Innovation and Skills [2013] EWHC 1117 (QB)

[2013] EWHC 1117 (QB)Case No HQ12X01303
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 02/05/2013
Before
MR JUSTICE NICOL
Between
George CollinsClaimant(1) Secretary of State for Business Innovation and SkillsDefendant(2) Stena Line Irish Sea Ferries LtdDefendant
Giles Eyre (instructed by Corries) for ClaimantColin Nixon (instructed by DAC Beachcrofts) for 1 st DefendantClaire Toogood (instructed by Berrymans Lace Mawer) for 2 nd DefendantHearing Hearing dates: 24th and 25th April 2013
Judgment
[1]The Claimant in this case was born on 8th October 1924. Between 1947 and 1967 he was a dockworker in the London docks. At that time he was registered with the National Dock Labour Board (“NDLB”). It is his case that in the course of this work he was exposed to asbestos while unloading bags of asbestos from various ships. Dock workers at the time were hired by specific stevedoring companies on a casual basis. The Claimant says that one of the companies for which he did a great deal of work was called Scruttons and many of the ships which he unloaded for them were carrying asbestos. He retired in 1984 at the age of 60. In May 2002 he was diagnosed with lung cancer. The condition was thought to be terminal. He was prescribed radiotherapy as a palliative measure. However, happily, the treatment appeared to have done more and brought the cancer under control. It is his case that he first became aware that there might have been a connection between this cancer and his exposure to asbestos when he saw an advertisement in the Daily Mail in July 2009 placed by his current solicitors. A report by Dr Rudd was provided on 27th October 2009. Dr Rudd recommended that an engineer’s report be obtained. Morgan Finch were instructed and William Finch wrote his report on 14th April 2010. The Claim Form was issued on 22nd May 2012. It named the 1st Defendant as responsible for any torts by the NDLB, and the 2nd Defendant as the successor to Scruttons. Particulars of Claim were served on 9th September 2012.[2]In their Defences, the Defendants disputed liability but argued as well that the claim was barred by the Limitation Act 1980. On 19th November 2012 Master McCloud ordered that limitation should be tried as a preliminary issue. This came before me on 24th April 2013. I heard oral evidence from the Claimant, his wife, Patricia Collins, and Colin Turnage, who had also been a dock worker and unloaded asbestos from ships in the period 1954-1967. The 1st Defendant put forward the witness statements of Stephen Lemon dated 3rd January 2013 and 26th March 2013 and the 2nd Defendant that of Nicholas Pargeter of 21st January 2013. The Claimant did not require either Mr Lemon or Mr Pargeter to attend for cross examination.

The Law

[3]This being a claim for damages for negligence or breach of duty which includes damages for personal injury, the limitation period is three years from the date on which the cause of action accrued or (if later) the date of knowledge of the person injured – Limitation Act 1980 s.11(1)-(4). The “date of knowledge” is defined by s.14 of the 1980 Act. So far as material, this says, “(1) ... in section 11...of this Act references to a person’s date of knowledge are references to when he first had knowledge of the following facts –(a) that the injury in question was significant; and(b) that the injury in question was attributable in whole or in part to the act or omission which is alleged to constitute negligence, nuisance or breach of duty; and(c) the identity of the defendant, and(d) if it is alleged that the act or omission was that a person other than the defendant, the identity of that person and the additional factors supporting the bringing of an action against the defendant; and knowledge that any acts or omissions did or did not, as a matter of law, involve negligence, nuisance or breach of duty is irrelevant. ..... (a) that the injury in question was significant; and (b) that the injury in question was attributable in whole or in part to the act or omission which is alleged to constitute negligence, nuisance or breach of duty; and (c) the identity of the defendant, and (d) if it is alleged that the act or omission was that a person other than the defendant, the identity of that person and the additional factors supporting the bringing of an action against the defendant; and knowledge that any acts or omissions did or did not, as a matter of law, involve negligence, nuisance or breach of duty is irrelevant. ..... (3) For the purposes of this section, a person’s knowledge includes knowledge which he might reasonably have been expected to acquire – (a) from facts observable or ascertainable by him, or (b) from facts ascertainable by him with the help of medical or other appropriate expert advice which it is reasonable to expect him to seek; but a person shall not be fixed under this subsection with knowledge of a fact ascertainable only with the help of expert advice so long as he has taken all reasonable steps to obtain (and where applicable to act on) that advice.”[4]It is not necessary for me to decide in this case when the cause of action accrued because the Defendants and Claimant are agreed that the critical issue is when the Claimant had, or is deemed to have had, the necessary knowledge. Furthermore, the parties agree that what matters is the Claimant’s actual or constructive knowledge of the fact that the lung cancer which he had developed by May 2002 was attributable in whole or in part to his alleged exposure to asbestos. In Spargo v North Essex District Health Authority [1997] PIQR 235, 242 the Court of Appeal said that s.11(1)(b) means only that there is a real possibility that the act or omission caused the injury (I will use the shorthand expression “possible cause” to refer to the Spargo test). In deciding whether the Claimant had actual knowledge, therefore, I must consider when he actually knew that there was a real possibility that his exposure to asbestos had caused his lung cancer. If the Defendants are able to establish that the Claimant had actual knowledge in this sense more than 3 years before the issue of the claim form in May 2012, their limitation defence will succeed subject to the Claimant’s request that the time limit (if necessary) should be excluded under s.33 of the Act.[5]If I am not persuaded that the Claimant had actual knowledge, I will next have to consider whether he is deemed to have the necessary knowledge because of s.11(3). The leading authorities are Adams v Bracknell Forest Borough Council [2005] 1 AC 76 and Johnson v Ministry of Defence [2012] EWCA Civ 1505. As Dame Janet Smith said in Johnson at [22] “the court does not ask whether the what the claimant did or did not do was subjectively reasonable. Rather, as the respondents submitted, when considering whether a claimant had constructive knowledge of the attributability of his condition, the court asks whether a normal adult in the position and with the knowledge of the claimant would have sought expert advice about the cause or attributability of his condition. Put another way, considered objectively, should the claimant reasonably have been expected to seek expert advice?” There is an assumption that a person who has suffered a significant injury would be sufficiently curious to seek advice unless there were reasons why a reasonable person in his position would not have done. The courts have openly recognised that this places a demanding test on claimants. That is for deliberate policy reasons. If the claimant was found to have constructive knowledge, then his action could still proceed if the court in its discretion under s.33 decided that it would be equitable to exclude the limitation defence. But if a more relaxed approach was taken to constructive knowledge, the period within which to bring an action could be extended as of right by very lengthy periods (and even, in theory at least, indefinitely) whatever the prejudice this would cause the defendant - see Johnson at [24]-[25]. At the end of her judgment, Dame Janet accepted that a reasonable man might need some “thinking time” between the time when he realised that he had a significant condition and seeking expert advice - Johnson at [31].[6]If the Defendants persuade me that the Claimant had either actual or constructive knowledge then I must consider whether to exercise my power under s.33 to disapply the time limit. The material parts of s.33 are:
“1) If it appears to the court that it would be equitable to allow an action to proceed having regard to the degree to which- i) the provisions of section 11 [or 11A] or 12 of this Act prejudice the plaintiff or any person whom he represents; and ii) any decision of the court under this subsection would prejudice the defendant or any person whom he represents; the court may direct that those provisions shall not apply to the action, or shall not apply to any specified cause of action to which the action relates. … (3) In acting under this section the court shall have regard to all the circumstances of the case and in particular to – a) the length of, and the reasons for, the delay on the part of the plaintiff; b) the extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the plaintiff or the defendant is or is likely to be less cogent than if the action had been brought within the time allowed by section 11 …; c) the conduct of the defendant after the cause of action arose, including the extent (if any) to which he responded to requests reasonably made by the plaintiff for information or inspection for the purpose of ascertaining facts which were or might be relevant to the plaintiff’s cause of action against the defendant; d) the duration of any disability of the plaintiff arising after the date of the accrual of the cause of action; e) the extent to which the plaintiff acted promptly and reasonably once he knew whether or not the act or omission of the defendant, to which the injury was attributable, might be capable at that time of giving rise to an action for damages; f) the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received.” i) the provisions of section 11 [or 11A] or 12 of this Act prejudice the plaintiff or any person whom he represents; and ii) any decision of the court under this subsection would prejudice the defendant or any person whom he represents; a) the length of, and the reasons for, the delay on the part of the plaintiff; b) the extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the plaintiff or the defendant is or is likely to be less cogent than if the action had been brought within the time allowed by section 11 …; c) the conduct of the defendant after the cause of action arose, including the extent (if any) to which he responded to requests reasonably made by the plaintiff for information or inspection for the purpose of ascertaining facts which were or might be relevant to the plaintiff’s cause of action against the defendant; d) the duration of any disability of the plaintiff arising after the date of the accrual of the cause of action; e) the extent to which the plaintiff acted promptly and reasonably once he knew whether or not the act or omission of the defendant, to which the injury was attributable, might be capable at that time of giving rise to an action for damages; f) the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received.”
[7]The parties agreed that the overarching or fundamental test which I have to apply is whether it would be equitable to allow the action to proceed, having regard to the prejudice which the Claimant would suffer, if the limitation bar in s.11 stood, as against the prejudice the Defendant would suffer if the limitation defence was excluded – s.33(1). All the facts of the case are to be taken into account. Those specifically enumerated in s.33(3) are non-exhaustive. It is for the Claimant to persuade me that I should exercise the power under s.33 in this case – see for instance Sayers v Chelwood [2012] EWCA Civ 1715. Current authorities eschew any characterisation of that burden as being particularly heavy e.g. Sayers at [54]. The discretion is broad and unfettered, although it must of course be exercised judicially.[8]Mr Eyre, for the Claimant, submitted that a refusal to exercise the power under s.33 would give the Defendants a windfall. Ms Toogood, for the 2nd Defendants (and her submissions throughout were adopted by Mr Nixon on behalf of the 1st Defendant) said that was wrong. In my judgment the correct position on the authorities is as follows. The Limitation Act allows a defence if an action is not brought in time. In personal injury actions, s.33 allows the court to set aside that defence if the balance of prejudice would make it equitable to do so. If, for the sake of argument, the defendants would suffer no prejudice, or if for some other reasons it would be fair and just to allow the action to continue, then the limitation defence would be a windfall. However, if the balance of prejudice does not favour the Claimant, the continuing ability of the Defendants in those circumstances to rely on the Limitation Act is no windfall. Correspondingly, the bare fact of extending the primary limitation period, and so denying the defendants a limitation defence, is not by itself “prejudice” to the Defendant if it would be fair and just to allow the action to continue – see Cain v Francis [2009] QB 754 per Smith LJ at [68] – [70].[9]There was some debate as to whether the Defendants could rely on prejudice which accrued to them because of the passage of time between the Claimant’s work in the docks and alleged exposure to asbestos (i.e. up to about 1967) and the diagnosis of lung cancer in 2002. In itself this period of some 35 years has hampered their ability to defend the Claim. The NDLB was wound up in 1989 and it is apparent that it has not subsequently maintained an archive of records of its own. Mr Aspinall, the Librarian of the Museum of London’s Docklands Library and Archive, made a statement in 1999 in which he said that this was the case. Moreover, the scores of independent employers operating in the docks in the 1950s and 1960s to whom dock workers were referred for work by or on behalf of the NDLB have themselves closed and their records have not survived.[10]Mr Eyre argued that they could not. Certain diseases which were caused by industrial conditions only manifested themselves very many years after exposure to those conditions. No one suggested that Mr Collins could conceivably have commenced his proceedings before he was aware of the symptoms of his lung cancer. Prejudice consequent on this lapse of time was simply inherent in this type of action and should be left out of account in striking the balance required by s.33.[11]Ms Toogood argued that I could have regard to prejudice suffered as a result of this period (as well as to prejudice from the further lapse of time between diagnosis, or a few months ‘thinking time’ after that, and the issue of the claim form in 2012). She acknowledged that the delay referred to in paragraphs (a) and (b) of s.33(3) meant delay after the expiry of the primary limitation period – see Thompson v Brown [1981] 1 WLR 744, 751 and Donovan v Gwentoys Ltd [1990] 1 WLR 472, 478. However, the opening words of s.33 requires the court to take into account all the circumstances of the case. In Donovan itself, the House of Lords held that this permitted the judge to take account of prejudice which accrued to the defendants during the primary limitation period and during which they had had no notice of the Claimant’s claim.[12]It seems to me that the generality of the opening words of s.33(3) mean that I can take account of the totality of difficulty which the Defendants would now have in defending this claim. Of course, if a claimant brought proceedings within the primary limitation period then the difficulty which the defendant would face in reconstructing events many decades previously will be irrelevant, but the position is different when an action is not brought as of right within the primary limitation period and the claimant is dependent on showing that it is equitable to allow it to continue. The position is not exactly comparable to Donovan: a claimant who delayed after actual or constructive knowledge could be characterised as ‘dilatory’; that could not be a fair description of a claimant who did not even know that he had suffered loss. Nonetheless, it would be equally unreal to ignore the fact that the delay for which the Claimant needs an extension of time adds to the problems which the Defendants would in any event be facing. To disregard that fact would also be contrary to the statutory requirement to take account of “all the circumstances.”

Date of Knowledge

[13]The Claimant’s first witness statement (of 4th September 2009) is silent as to the time when he first was aware of the connection between his lung cancer and his exposure to asbestos while a dock worker. In his second witness statement (13th June 2010) he says that it was only in 2009, when he saw an article that suggested lung cancer might be caused by asbestos exposure, that he thought about looking into a claim. He said that at the time of his diagnosis the only thought in his mind was the prognosis from the doctors that he had only a few months to live. This was devastating news. He did recall the doctors asking questions about his employment and cigarette smoking. He says that a Polish doctor (this appears to be a reference to Dr Prejbisz, Associate Specialist in Radiotherapy and Oncology at the Southend Hospital) asked general questions concerning his employment, family, social history, smoking and previous health problems. He says that the doctors did not tell him that his lung cancer was due to his previous asbestos exposure. In his third statement (14th April 2013), he said he did recall discussing with the doctor that he had unloaded asbestos cargo amongst other things, but he reiterates that at no point did the doctors suggest that his lung cancer might have been caused by exposure to asbestos. He says that at the time of the diagnosis he was too focused on the very poor prognosis that he was being given to inquire about what had caused his lung cancer. He says, though, in this third statement that, in later years, he did ask Ms Lovett, who was treating him for bowel cancer, what might have caused the lung cancer. From the medical records we can see that the Claimant was seen by Ms Lovett between 2008 and 2010. He said that he also recalled asking the same question to Dr Prejbisz. Dr Prejbisz discharged the Claimant in 2008. The Claimant says that he recalled both doctors saying that they could not tell him what had caused the lung cancer.[14]The contemporary medical records confirm that there was some discussion about the Claimant’s previous work with asbestos when he was seen in relation to his lung cancer. Thus, Dr Ali Elsheikh, staff grade physician in the Department of Respiratory Medicine at Basildon Hospital, saw the Claimant on 2nd May 2002. His notes record “worked with asbestos in Tilbury Docks”. Dr Elsheikh’s letter to Dr Gertner, the Consultant Physician and Gastroenterologist at Basildon Hospital of 3rd May 2002 repeated that the Claimant “had previously worked with asbestos in the Tilbury Docks.”[15]Later in May, the Claimant was referred to Dr Prejbisz. Dr Prejbisz’s notes of 30th May 2002 also record that the Claimant previously worked with asbestos at Tilbury docks.[16]A hand written note in the records of Dr Woodhead, a registrar to the consultant Dr Mukherjee for 9th June 2009, also says of the Claimant “crane driver – exposed to asbestos”.[17]In cross examination the Claimant accepted that he had been asked at the time of the diagnosis of lung cancer about his past smoking. He agreed that one of the risks of smoking was that it could cause lung cancer. He agreed as well that he knew that (in general terms) asbestos caused a risk to health. He denied, though, that it had occurred to him that the questions from the doctors about his exposure to asbestos led him to appreciate a link between that feature of his history and his lung cancer. He said that when he had been working in the docks, his union had been asked about the risks of handling asbestos and the union had said it was safe. He did agree, though, that he knew by 1967 the Board of Trade had banned asbestos coming into the docks unless it was in sealed containers and this was because unprotected asbestos was a risk to health. He said he could not remember when he had asked the two doctors what had caused his lung cancer, but he thought he must have asked Ms Lovett first. Since he began to see her in 2008 and was discharged by Dr Prejbisz in 2008, if he is right about this sequence, his questions to both doctors must have been in that year. He could not remember precisely what he had asked. In particular, he could not recall whether he had asked what had caused the lung cancer or what might have done so. He said that he was not aware of any of his former colleagues from Tilbury contracting lung cancer or otherwise getting ill from asbestos. It was not the case that he thought his lung cancer was due to his past smoking.[18]In her witness statement, Mrs Collins said that she went to all the doctors’ appointments with her husband. At the time of his diagnosis she recalled a lot of questions about his lifestyle including his smoking history and his employment, but she did not recall any specific questions about asbestos exposure. In her oral evidence, she went further and said positively that no one had mentioned asbestos. She was only aware of the possible link between asbestos and lung cancer when she had seen an advertisement in the Daily Mail from the Claimant’s current solicitors which read “Asbestos compensation, did you work at any of these between 1940 and 1980 ....Tilbury docks...Are you suffering from any of these...lung cancer.”[19]Ms Toogood submitted that I should infer that, at the time of his diagnosis in 2002, the Claimant had actual knowledge of the real possibility that his lung cancer was due to asbestos exposure. He was asked about smoking and he knew that smoking involved a risk of lung cancer. It is plain (despite the evidence of Mrs Collins) that he was asked about his work with asbestos and he knew that asbestos could be damaging to health.[20]Mr Eyre submitted that I should be careful about inferring that Dr Prejbisz as well as Dr Elsheikh had raised the subject of asbestos with the Claimant. It was equally possible that Dr Prejbisz had taken the information on this topic from the earlier notes. Similarly, the reference to asbestos in 2009 could have been a reference to the history taken by Dr Elsheikh. There was nothing in the GP records about asbestos. It was only when the Claimant and his wife saw the solicitors’ advertisement that he actually appreciated that there might be a link between his lung cancer and his earlier work with asbestos. Had he actually made the link earlier, he could have been expected to take action earlier. Further, if he had made that link earlier, but done nothing, why should he have taken action when he saw the solicitors’ advertisement?[21]In my judgment the Claimant did not have actual knowledge of the possible link between his lung cancer and the exposure to asbestos until July 2009 when the advertisement was published. It is quite clear that the subject of his work with asbestos was raised on at least one occasion. The contemporary medical records make that clear and Mr Collins agreed. Mrs Collins’ memory to the contrary is unreliable on this matter. However, I agree with Mr Eyre that the medical records are equally consistent with the subject of his past working with asbestos being discussed just the once – on 2nd May 2002 with Dr Elsheikh and later doctors taking that information from the record of that consultation or from Dr Elsheikh’s letter of 3rd May 2002. At the time of his diagnosis in May 2002 it is understandable that his (and the treating doctors’) attention was focussed on his prognosis and such care as he could be given, rather than the cause of the lung cancer. In those circumstances, I accept that he did not actually draw the connection between his present condition and his work many decades previously with a product which he knew to be hazardous to health but only in general terms.[22]I must then turn to the question of constructive knowledge. What inquiries would it have been reasonable to expect him to make? Accepting, as I do, that the question must be posed objectively I do not consider that even the hypothetical reasonable man would be oblivious to the sudden and devastating prognosis that the Claimant was given – that he had only a few months left to live. Even the reasonable man in those circumstances would be likely to have concentrated on matters other than the cause of his illness. Ms Toogood did agree that a period of “thinking time” should be attributed even to the reasonable man.[23]Nonetheless, once the original shock was over, and especially once the prognosis was shown to have been unduly gloomy and the Claimant responded so positively to radiotherapy, the position changed. The Claimant saw Dr Prejbisz on numerous occasions and there was ample opportunity for him to inquire as to the possible causes for his lung cancer. As the courts have said, a reasonable man could be expected to be curious about the causes of a major illness. Mr Eyre argued that was not so in this case. By 2002 Mr Collins was 78. He was not therefore in the same position as a younger man. Lung cancer was commonly attributed to smoking and, even on his own evidence, the Claimant had smoked to some extent for part of his life. By contrast, lung cancer is not commonly seen as a consequence of working with asbestos.[24]I was not persuaded by these arguments. Even for a person of his age, the lung cancer was a significant, painful and distressing event. The Particulars of Claim and Schedule of Loss spell out in more detail what the Claimant says he has suffered. It is not for me at this stage to judge whether they are all well founded and it is right to note that, by comparison with some industrial disease claims it is of relatively modest amount. Yet I conclude that it was still of sufficient significance that it would have prompted the natural curiosity as to its cause in the mind of a reasonable man. Nor do I think that the reasonable man would have thought those inquiries unnecessary because he would have assumed that lung cancer was down to smoking. The risk of contracting lung cancer from smoking can vary greatly depending on the amount of cigarettes that have been smoked. It is the Claimant’s case that he was a relatively light smoker for a relatively few years and had given it up many years before. As Ms Toogood showed, there is some evidence in the medical records that his smoking may have been considerably heavier and the precise time when he gave it up is not entirely clear. Nonetheless, in his evidence, the Claimant said he did not put the lung cancer down to his smoking. Looked at from his point of view, his past smoking cannot therefore have been a reason for not making inquiries about the cause of the lung cancer. And looked at from the point of view of a reasonable man who had given up smoking not less than 35 years previously, I consider that natural curiosity would still operate to provoke inquiry as to the possible causes for the disease. Put another way, in those circumstances, the reasonable man would not think the answer was so obvious that inquiries would be pointless or were not ones which should reasonably have been made.[25]Those matters alone would be enough for me to conclude that a reasonable man would have made inquiries about the cause of his lung cancer. However, in addition, there is a further factor. While I have accepted that a reasonable man could not be expected to have embarked on those inquiries immediately, he would have done so after the radiotherapy treatment had proved successful. At that time, he would have been likely to recall that the doctors who diagnosed him were not only interested in his smoking, but also his work history. Neither the Claimant, nor the reasonable man, could be expected to know that asbestos could cause lung cancer, but the reasonable man in the Claimant’s position and with his knowledge of the history of asbestos handling in the docks, would have known that in a more general way it was hazardous to health. Coupled with the questions which the doctors had asked, this would mean that the reasonable man would have been even less likely to dismiss inquiries as to the possible cause of the lung cancer as pointless because the answer was obvious.[26]I have taken into account what the Claimant said about the inquiries which he did make of Ms. Lovett and Dr Prejbisz about the cause of his lung cancer and the answers which he says that they gave him. Section 14(3) concludes “a person shall not be fixed under this subsection with knowledge of a fact ascertainable only with the help of expert advice so long as he has taken all reasonable steps to obtain (and, where appropriate, to act on) that advice.” Mr Eyre submits that this applies to the Claimant.[27]I cannot accept this argument. Ms Lovett treated the Claimant for bowel cancer and his inquiries to her about the cause of his lung cancer do not assist him for the purposes of this proviso to s.14(3). In any case, perhaps understandably, the Claimant could not recall precisely what he asked Ms. Lovett and Dr Prejbisz. But there is a critical difference between an inquiry as to what actually caused the lung cancer (to which the doctors may well have responded that they could not say) and one as to what might have been a real possibility for its cause. Given that Dr Elsheikh had specifically elicited from the Claimant that he worked with asbestos and given that Dr Prejbisz had either done the same or specifically included this aspect of the Claimant’s history in his notes, it is inconceivable that Dr Prejbisz would not have mentioned asbestos exposure as a possible cause if he had been asked this broader question. I have said that it is understandable that the Claimant cannot recall precisely what he asked, but he will only be able to take advantage of the proviso to s.14(3) if he can show on the evidence that its conditions are more likely than not to be fulfilled. He has not been able to do that.[28]I conclude, therefore, that it would have been reasonable to expect the Claimant to make further inquiries as to the possible causes of his lung cancer and, had he done so, exposure to asbestos would have been identified as one such possible cause. Allowing for “thinking time” to embark on those inquiries and a certain amount of response time for the doctors to whom such questions could have been posed, the Claimant would have had the necessary knowledge by the middle of 2003.

Should limitation be extended?

[29]I shall start by considering the specific factors listed in s.33(3) (a). Length of and reasons for the delay on the part of the claimant[30]The chronology is this:- - Mid 2003 Claimant had constructive knowledge - Mid 2006 expiry of primary limitation period - July 2009 Claimant saw advertisement in the Daily Mail and instructed solicitors - 27th October 2009 medical report from Dr Rudd - 16th November 2009 letter before claim to the 1st Defendants - 14th April 2010 engineering report of William Finch - 10th November 2010 letter before claim to the 2nd Defendants - 22nd May 2012 Claim Form issued Thus some 6 years passed between the expiry of the primary limitation period and the issue of the claim form. The first 3 years were due to the lack of the Claimant’s actual knowledge. Nine months were then taken to obtain necessary reports. There is no evidence explaining the period between April 2010 and the issue of the claim form in May 2012. It would be wrong for me to speculate on possible reasons. (b). the extent to which delay is likely to make the evidence less cogent[31]Delay for the purpose of this paragraph is also delay since the expiry of the primary limitation period (i.e. mid-2006). Mr Eyre submitted that the Defendants will be affected because of the period of time which passed before then i.e. the period since the Claimant’s employment in the docks and exposure to asbestos from about 1947 – 1967 up until the expiry of the primary limitation period. The Defendants have suffered no further prejudice from the additional period of delay since then. Ms Toogood submitted that the 2nd Defendant certainly would suffer prejudice because of the earlier period, but she argued that there was still further prejudice because of the subsequent delay. She noted that the Claimant’s own evidence had changed since his first witness statement in 2009. She referred in particular to the following: i) It was only in his third witness statement that he mentioned Percy Rowse who had been a foreman for Scruttons and for whom Mr Collins said he worked regularly over a 10 year period including unloading asbestos. In his oral evidence, the Claimant said Mr Rowse was now dead. He could not say when he died except that it was long ago. ii) His evidence had changed as to when he began working as a crane driver. In his first witness statement he said that it was in 1967. But in his third statement he said that he actually trained to operate cranes in the late 1950s. In his first statement he said that he was not exposed to asbestos while operating the crane. In his oral evidence he said that was wrong and asbestos did come in through the window of the crane. iii) His evidence changed as to how much time he had spent unloading asbestos. In his first statement he said that he did so on average every 3 – 4 weeks with each unloading taking 6 - 10 hours (so about 15 days per year). In his third witness statement he said that the frequency was less ( 3 – 4 times per year) but the time to unload was longer (5 – 10 days) so 15 – 40 days per year. In his oral evidence the ranges were broader: unloading might take between 1 and 7 days. The number of asbestos cargos per year might be 3-4 or 10-12 and so the number of days of exposure each year was somewhere between 3 and 84. iv) His evidence has changed as to his smoking history. In his first witness statement he said that he smoked less than 10 army ration cigarettes a day from 1942-1945 and he had not smoked since then. In his third witness statement he said that he smoked an average of 2 cigarettes a day in his army years. After he left the army he did not smoke regularly, but did have the occasional cigarette and cigar - no more than a handful in the course of a year. He gave up entirely in around 1960. In his oral evidence he said that after the war he was smoking about 2 -3 cigarettes a week (so 100 - 150 over the course of a year). These discrepancies aside, a different picture is presented by the medical records which describe the Claimant as a heavy smoker (about 40 per day) who gave up in about the mid-1960s. I bear in mind Mr Eyre’s comments that the origins of the references to the Claimant being a heavy smoker are not clear and the possibility that they did not each derive from separate questioning of the Claimant, but were copied from one note to another. I cannot resolve those matters, although it is difficult to see how the precise figures given for the Claimant’s smoking could have been obtained, if not from him on at least one (and probably more than one) occasion. At its lowest, it can be said that the medical records do not support his case that he was never more than a modest smoker. This is another aspect of his case therefore which would depend on the reliability of his own evidence. Mrs Collins’ evidence had also changed. As I have noted above, in her witness statement she said that she could not recall any reference to asbestos at any of the medical appointments she attended with her husband. In evidence, she was positive that nothing had been said about asbestos. I agree with Ms Toogood. Even against a background of a lengthy lapse of time before the primary limitation period expired, there would be still further prejudice to the Defendants from the Claimant’s additional delay.

(c) conduct of the defendant after the cause of action arose

[32]This is not a case where delay or omissions by the Defendants is relied upon by the Claimant. The 2nd Defendant responded to the letter before claim on 13th December 2010 and so after about a month. Solicitors for the 2nd Defendant wrote to the Claimant’s solicitors asking if the claim was to be pursued. There was no response, despite several chasing letters, until 21st August 2012 when the Claimant’s solicitors asked the 2nd Defendant’s solicitors if they were instructed to accept service.

(d) duration of any disability of the claimant

[33]This is not relevant in the present case. (e). extent to which the Claimant acted promptly and reasonably once he knew his lung cancer might be attributable to the Defendants[34]Mr Eyre, for the Claimant, observed that when paragraph (e) refers to the extent to which the Plaintiff (now Claimant) acted promptly and reasonably once he appreciated that he might have a cause of action against the Claimant, it means the Claimant personally and not any delay on the part of his lawyers – see Davis v Jacobs [1999] All ER (D) 227 CA at [84].[35]It is apparent from a letter from HMRC of 10th November 2009 that Corries had written to them on behalf of the Claimant on 10th July 2009. Mr and Mrs Collins say that the advertisement in the Daily Mail appeared in July 2009. There was, therefore, no delay by the Claimant in instructing his solicitors once he had actual knowledge of the possibility that his lung cancer was attributable to exposure to asbestos. Neither of the Defendants argued otherwise. (f). steps taken by Claimant to obtain medical, legal or other expert advice[36]I have no information as to steps the Claimant took (apart from instructing solicitors) to obtain legal advice. It was plain that he needed medical advice. Dr Rudd was instructed reasonably promptly. He advised an engineer’s report be obtained. Thus Mr Finch was asked to provide a report and did so in April 2010. Thus the 10 months or so between July 2009 and April 2010 are readily accounted for.

Other matters

[37]As I have said above, I consider that I should take account of the difficulties which the Defendants would face because of the totality of the interval between the events which would require examination (1947-1967) and the issue of the claim form in May 2012. Only patchy records survive from the period that Mr Collins says he was exposed to asbestos. Many of the people who might have been witnesses (for instance Mr Rowse) have died. Mr Turnage is one of those who has survived. But his evidence is of limited assistance to the Claimant. Although he also worked at Tilbury Docks, he appears to have unloaded far fewer cargoes of asbestos than the Claimant. His evidence was that during the period 1954 -1967 he unloaded about a dozen asbestos cargoes – so about one a year (by comparison with the 15 or so a year that the Claimant referred to in his first statement and 3 – 4 a year in his third). In his witness statement, Mr Turnage said each cargo took at least a week to discharge. In his oral evidence he said that the time to unload might be only 6 -10 hours. This might be the case, for instance, if a cargo had been discharged at another port before Tilbury.[38]The Defendants argued that I should also take into account the Claimant’s poor prospects of succeeding at trial. Even though they may eventually win a trial this, they argue, is relevant in their favour because they will still have to go to trouble and expense to fight the claim. Additionally, there is less prejudice to a claimant in refusing an extension of time if what he thereby loses is a claim which anyway has poor prospects of success.[39]Mr Eyre accepted that the Court could take account of the merits of the underlying action, but great care is needed and it is sufficient for these purposes that the Court considers that the Claimant has a reasonable prospect of success - see Davis v Jacobs at [87]-[91].[40]The focus of the Defendants’ submissions in this regard was on the difficulty which the Claimant would face in establishing that he had been exposed to a sufficiently large quantity of asbestos over his working life in the docks. In his report, Dr Rudd referred to the Helsinki criteria (Consensus Report 1997) which had been formulated by an international panel of experts. The criteria are alternatives. Those relevant to the present case were as follows:
“- An occupational history of one year of heavy exposure to asbestos (eg manufacture of asbestos products, asbestos spraying, insulation work with asbestos materials) or 5-10 years of moderate exposure (eg construction or shipbuilding) - Cumulative exposure of 25 fibre/ml years. This also happens to be the threshold dose for the development of asbestosis. In the 2004 review (Henderson et al) it was acknowledged that the 1997 criteria paid insufficient attention to fibre type. The 25 fibre/ml year criterion remains appropriate for exposure to mixed fibre types with a preponderance of amphiboles. If exposure involved equal quantities of amphiboles and chrysotile cumulative exposure of the order of 40 fibre ml/years is probably necessary to double the risk of lung cancer (Henderson et al 2004; Hodgson and Darnton 2000). For exposure to commercial chrysotile only exposure in the range 100 to 200 fibre ml/years, depending upon industry is probably necessary to double the risk of lung cancer.”
Dr Rudd noted that the Claimant’s X rays did not show evidence of asbestosis in the lungs. Establishing causation therefore depended on assessment of the dosage he received. Dr Rudd thought that the exposure which the Claimant described when passing along corridors with damaged asbestos piping was likely to have been too small to be significant. He therefore concentrated on the exposure the Claimant experienced when unloading asbestos cargos. He took the figures which the Claimant gave in his first witness statement (so 15 days p.a., 8 hours per day and 21 years) and concluded that he had been exposed for 1.26 working years. The conditions he described were consistent with heavy exposure and so he fulfilled the first of the Helsinki criteria which I have quoted above. It was also likely that he exceeded the second criterion which I have quoted of 40 fibre ml/year assuming an equal mix of chrysotile and amphiboles i.e. amosite and crocidolite. This was because the Claimant referred to white/grey asbestos and grey asbestos was another term for brown asbestos or amosite.[41]Ms Toogood submits that Dr Rudd’s conclusions are critically dependent on the evidence of the Claimant as to three matters: the number of times per year that he was unloading asbestos cargoes; the length of time it took to unload each cargo; and the mix of different types of asbestos in the cargos. Dr Rudd was working on the basis of the first witness statement which said the Claimant dealt with about 15 cargoes a year. That changed in his most recent statement to 3 – 4 per year. In addition, the Claimant had said he worked from 1946, but he was only registered with the NDLB from 1947. Further, from the late 1950s he was trained as a crane driver. While it may have taken some time for him to gain experience and his employment in that capacity would initially have been patchy, there would have been a declining number of occasions when he was working in the holds of ships in the early and mid 1960s. In addition, the Claimant’s most recent statement said that it took about a week to unload a cargo of asbestos, but a trial judge would have to set that against his first witness statement that it took only a day, his evidence in court that it could take between 1 and 7 days and the evidence of Mr Turnage that unloading took somewhere between 1 and 7 days.[42]The documentary evidence of the asbestos passing through Tilbury Docks is scant. The focus has to be on Tilbury because, in answer to a Part 18 request, the Claimant had been unable to say the nature or extent of any asbestos exposure outside Tilbury. Such evidence as there is tends to show asbestos being handled in other docks than Tilbury. Thus a report from Dr Milton of 18th August 1966 reported it being handled at the Royal, West India and Surrey docks. Tilbury is not mentioned. Dr Aspinall, the Librarian of the Museum of London Docklands Library and Archive gave the same docks as the principal ones handling asbestos. A letter from Scruttons of 10th February 1961 said that they did not handle a great deal of this commodity, only 637 tons (the equivalent of about 2 shiploads) were handled in 1960. The letter does not say at which dock they were unloaded. There is one positive mention of asbestos at Tilbury. Stephen Lemon of the 1st Defendant’s solicitors has found a minute of the Port of London Authority Group Joint Committee of 15th December 1966. This says that asbestos was still being handled at Tilbury, although it does not say in what volume. Mr Turnage does support the Claimant’s case by showing that some asbestos was unloaded at Tilbury, but Mr Nixon submitted that, if Tilbury was handling asbestos in the volume that the Claimant suggested, one would have expected to see greater reference to it in the documentation. In his second witness statement the Claimant said he recalled that Scruttons did most of the work on the Castle, Clan and Ellerman and Bucknall Lines. Mr Eyre submitted that it was well known that these were involved in the carriage of asbestos between South Africa and London. That is supported by the witness statement of Mr Lemon. However , Mr Lemon’s first witness statement said that, while he knew that those lines used other docks, he did not know whether they also used Tilbury. Such evidence as I have (in particular extracts from James Bird, “The Major Seaports of the United Kingdom” (1963)) shows Tilbury Docks handling Clan Line ships trading with India and West Africa, but not South Africa.[43]As I have shown, Dr Rudd also considered it important to know what was the type of asbestos which the Claimant was handling. The Claimant’s first witness statement said that the asbestos was “white/grey or occasionally blue”. White is chrysotile. Blue is amphibole. Ms Toogood submits that this is a weak foundation for the assumption that grey should be regarded as another form of amphibole and the ratio of amphibole to chrysotile be taken as about equal. The report of Dr Milton in 1966 showed that the ratio of amphibole to Chrysotile being unloaded at those other docks was nearer 1:10. That also was consistent with the evidence of Mr Turnage who said that “The asbestos was white in colour and occasionally blue.” Mr Finch says that the bulk of the world’s supply of amphiboles came from South Africa, but this does not mean that the bulk of asbestos coming through Tilbury was also amphiboles. In addition, Mr Finch also says that South Africa produces chrysotile.[44]Taking all this together, Ms Toogood submitted, the Claimant had a weak case for being able to demonstrate that his exposure was above either of the relevant Helsinki criteria.[45]Mr Eyre submitted that there was a substantial margin for error in Mr Rudd’s report. On the figures that the Claimant gave in his first witness statement, his exposure was three times the necessary minimum in the second of the Helsinki criteria which I have quoted. On those in his second statement the minimum was exceeded by a factor of between 6 and 9.[46]While I am very conscious that it is not my task to try the merits of the Claimant’s claim, I consider that there is considerable force in Ms Toogood’s submissions. The Claimant gives a vivid account of conditions when he was unloading asbestos, but so, too, does Mr Turnage, even though he unloaded only a dozen asbestos cargos over 13 years. The first witness statement of the Claimant does lead Mr Rudd to conclude that his exposure was well over the minimum, but the number of years when the Claimant was working in holds was probably fewer for the reasons which Ms Toogood gave. More importantly, again for the reasons which she gives and which I have summarised above, the Claimant would have grave difficulties in persuading a court that the mixture of amphiboles and chrysolite was about equal. The Claimant’s third witness statement gives a greater margin for error only if the longer estimate for unloading cargoes is taken as accurate. But in their evidence, both the Claimant and the Mr Turnage accepted that unloading was sometimes completed in a day. If this was the more general pattern and if the court were to accept that 3 – 4 cargoes of asbestos a year was more likely to be true then the Claimant would be unable to show that the Helsinki minimum criteria were satisfied in his case.[47]The Defendants also relied on the difficulty of apportioning liability between them when the Claimant was unable to recall the length of time he worked with which stevedoring companies. Difficulties in resolving contribution issues because of delay are another matter which the Court is entitled to take into account, see for instance Buckler v J.J. Finnegan Ltd [2004] EWCA Civ 920 at [34].[48]By contrast, the Defendants submitted, the Claimant’s claim is relatively modest. The Claim Form limited damages to £50,000. Although the Schedule of Loss attached to the Particulars of Claim claimed damages in the region of £84,000 no application had yet been made to amend the claim form. Because of its historical features, this would also be an expensive action to litigate and I could take account of this disproportion in exercising my discretion under s.33.

Overall assessment

[49]It is now necessary for me to draw these various strands together. The Claimant needs an extension of some 6 years which is a significant period. The first 3 years are accounted for by his lack of actual knowledge that his lung cancer might have been due to exposure to asbestos. He acted promptly in then contacting solicitors. 9 months was a reasonable time for them to obtain the necessary reports but there is no explanation at all as to why it then took 2 years and 3 months before proceedings were issued. None of the delay is attributable to procrastination by the Defendants.[50]The extension of time which the Claimants require has caused the Defendants prejudice. That prejudice is the greater when seen against the background of the difficulty which the Defendants would anyway have in contesting an action where the material events happened so long ago. I have fixed the Claimant with constructive knowledge from mid 2003. That is because it would have been reasonable for him by then to have made inquiries of his doctors and to have learned from them that a real possible cause of his lung cancer was the asbestos. In that sense he was dilatory and dilatoriness, even while the primary limitation period is running is something I can take into account. Plainly his failure to take action before learning that he had lung cancer cannot be criticised. Nonetheless, for the reasons which I have given above, I cannot ignore the difficulties which the Defendants will face because this litigation would require examination of events and circumstances which are now between 46 and 66 years ago. The difficulty of properly assessing contribution between defendants is one further aspect of that prejudice.[51]I accept the argument of Ms Toogood and Mr Nixon that this is a claim with significant weaknesses. It is no criticism of the Claimant that his memory is imprecise on many matters. He, too, is grappling with difficulties caused by the passage of time and, in his case, advancing years. This is not a case where he is assisted very much at all by contemporary records. As the Claimant, of course, he has the burden of proving his case. If the documents do not help and the Judge cannot rely on his memory, the claim does not have a good chance of success. This is not, by the standards of multi-track claims, one for a particularly large sum. And the costs of litigating it will already have been significant. The loss and damage which the Claimant claims may be nonetheless real for all that, but the disproportion between the likely recoverable loss and litigation costs is another factor which I can and do take into account.

conclusion

[52]For all of these reasons I find that the date of knowledge was mid 2003. The Claim was issued more than 3 years after that date. I refuse to exercise the power under s.33 of Limitation Act 1980 to extend time.[53]It follows that the Defendants’ limitation defence succeeds and this action must be dismissed.

Cited in 1 later judgment