16 May, 2013
As a Defendant, raising a defence that a Claimant's claim is statute barred due to the limitation period having expired often seems like a rather pointless exercise. The feeling often is that the Court will go through the motions, consider the case, but ultimately decide to exercise its discretion and allow the claim to proceed as there would be more prejudice to the Claimant in dismissing their claim than to the Defendant who has the opportunity to defend it. This issue was, however, considered in this recent High Court case which shows that all hope is not lost and in the right circumstances a Defence of limitation can still succeed.
This case involved a former dockworker who had been exposed to asbestos over 35 years ago and was subsequently diagnosed with terminal lung cancer in 2002. At the time of his diagnosis in 2002 he was told he had only months to live but treatment was more successful than initially thought and in 2009, after seeing an advertisement in a national newspaper, the Claimant instructed solicitors to pursue a claim for personal injury and proceedings were subsequently issued in May 2012.
A claim for damages for negligence which include an element of personal injury are subject to a limitation period of 3 years from the date on which the cause of action accrued or the date of knowledge of the injured person if later. It was accepted that the Claimant did not have actual knowledge of any possible link between asbestos and lung cancer until he saw the newspaper advertisement in 2009, what the Court had to decide was whether the Claimant was deemed to have the necessary constructive knowledge (in accordance with s3 Limitation Act 1980) prior to this date. In assessing whether the Claimant had the required knowledge the Court was directed to well-established case law on the issue where it is established that 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 so.
Given the Claimant's bleak initial prognosis it was accepted that a reasonable man at this time would not be querying the possible cause of his injury, he would have more important matters to consider. The Claimant subsequently responded well to treatment and at this time, the Court found, it would have prompted curiosity. It was therefore reasonable to expect the Claimant to make inquiries into the possible causes of his illness at this point and, had he done so, asbestos would have been identified as one such possible cause. Allowing for 'thinking time' and time for the doctors to consider and respond to queries, the Court found that the Claimant would have had the required knowledge by mid-2003. He therefore ought to have commenced proceedings by mid-2006. He was 6 years late.
The Court therefore had to consider whether to exercise its discretion under s.33 of the Limitation act and allow the claim to proceed. In making that decision the Court must consider whether it would be equitable to allow the claim to continue having regard to the prejudice which would be caused to each party and in considering that the Court should have regard to all the circumstances of the case and, in particular, to the non-exhaustive criteria set out in s.33(3) which include the length and reasons for the delay, the effect on the evidence adduced by either party, the conduct of the Defendant and whether the delay is down to them, the duration of any disability of the Claimant, the extent to which the Claimant acted promptly and reasonably once he had actual knowledge and the steps taken to obtain medical, legal or other expert advice.
In considering the present case the Court looked in particular at the period of delay. The primary limitation period expired in 2006, the period of delay from 2006-2009 could be explained by the lack of actual knowledge on the part of the Claimant, there was then no delay in instructing solicitors in 2009, 9 months were then taken to obtain the relevant experts reports but there was no explanation provided for the further 2.5 years delay. The Court accepted that, even against the background of a long lapse of time up until the primary limitation period expired, this additional delay further prejudiced the Defendant.
The Court also had regard to the following factors in reaching a decision;
the difficulties faced by the Defendant in investigating given the 46 years which had now elapsed
the difficulty in assessing contribution between the Defendants
the weakness of the claim generally and particularly in light of the Claimant's poor memory
the Claimant had the burden of proving his case and in light of his poor memory and a lack of documentary evidence this would be very difficult
It was also found that proportionality came into play, the claim was limited to £50,000 in the claim form and litigation costs would clearly outweigh that figure.
Taking all of the circumstances into account the Court declined to exercise its discretion to extend the limitation period and the Claimant's claim was accordingly dismissed.
Whilst this case does not herald a sea change in the Court's approach to exercising its discretion under the limitation act it does come as a welcome reminder that limitation is not entirely dead in the water. In the right case, taking all the circumstances into account, there are still real arguments to be had. This is particularly the case where there have been unexplained periods of significant delay after the expiration of the primary limitation period, this, coupled with weaknesses in the claim generally put the Claimant in a difficult position in satisfying the Court that it should exercise its discretion.