Central Asbestos Co Ltd v Dodd
[1972] 2 All ER 1135(Judgment by: Lord Morris of Borth-Y-Gest)
Central Asbestos Co Ltd
v. Dodd
Judges:
Lord Reid
Lord Morris of Borth-Y-GestLord Pearson
Lord Simon of Glaisdale
Lord Salmon
Subject References:
Limitation of action
Extension of time limit
Material fact outside knowledge of plaintiff
Lack of knowledge that injuries attributable to negligence, nuisance or breach of duty
Plaintiff knowing that injury resulting from acts and knowing extent of injury
Plaintiff reasonably believing that acts did not afford him grounds for an action at law
Plaintiff not knowing that injuries caused by defendants' wrongful conduct
Plaintiff contracting asbestosis in defendants' employment
Disease caused by defendants' breaches of statutory regulations
Plaintiff receiving disablement benefit in respect of the disease
Works manager informing plaintiff that he could not receive benefit and claim damages against defendants
Legislative References:
Limitation Act 1963 - 1(3); 7(3)
Judgment date: 28 June 1972
Judgment by:
Lord Morris of Borth-Y-Gest
My Lords, we are concerned in this case with a question whether the appellants, who admittedly were guilty of breach of duty as a result of which the respondent admittedly suffered serious personal injuries, can avoid paying him damages to compensate him for those injuries by deciding to rely on the provisions of s 2(1) of the Limitation Act 1939. It is accepted that as the appellants have so decided the respondent will be defeated from securing judgment even though he has established his cause of action unless by the operation of the provisions of the Limitation Act 1963, the plea of reliance on s 2(1) does not afford the appellants any defence.
Our task becomes that of interpreting the relevant section of that Act (the 1963 Act). The Act only applies to certain actions. They are the ones referred to in the proviso to s 2(1) of the 1939 Act. That subsection (s 2(1) as originally enacted in 1939) referred to various kinds of actions including those founded on simple contract or on tort. By the operation of the Law Reform (Limitation of Actions, etc) Act 1954, a proviso was inserted into s 2(1) of the 1939 Act. The proviso only related to a limited class of actions and it is to that limited class that s 1 of the 1963 Act applies. The wording of s 1(2) of the 1963 Act closely resembles the wording inserted (in 1954) into s 2(1) of the 1939 Act. Section 1 of the 1963 Act applies--
'to any action for damages for negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or of provision made by or under a statute or independently of any contract or any such provision) where the damages claimed by the plaintiff for the negligence, nuisance or breach of duty consist of or include damages in respect of personal injuries to the plaintiff or any other person.'
So we are only concerned with a limited class of actions being actions where the damages claimed are in respect of personal injuries.
There are various statutory provisions which impose differing limitation periods in varying circumstances. There are certain special provisions dealing with persons who may be under disability and there are special provisions dealing with situations where there may have been concealed fraud or mistake. But there can be no all-embracing policy considerations governing all situations. No statement as to what is desirable can be comprehensive. Sometimes it will be unfair if claims in relation to events are not made within a reasonable time of their happening. If there is delay either a plaintiff or a defendant may be disadvantaged. Both may be. Sometimes one will be more prejudiced by delay than the other. Often it will be oppressive if a defendant is called on to defend a delayed claim at a time when witnesses may no longer be available or when memories have faded. But equally it may be unfair if a plaintiff who undeniably has a good cause of action is thwarted by reason of a delay which is not his fault. Particularly may this be so in the case of plaintiffs who have suffered personal injuries which have been caused by some negligence or breach of duty on the part of a defendant. Under what circumstances, then should the defence of a limitation period be denied to a defendant? What should be the rule in cases where a plaintiff did not know that he had in fact suffered personal injury? What should be the rule in cases where though he did not know he might have known or ought to have known? What should be the rule in cases where a plaintiff did not bring an action because he did not know that he could bring an action? What should be the rule in such cases if he ought to have known that he could bring an action? In short, in cases in which injured plaintiffs have, without any fault on their part, been in ignorance of their rights, should there be some modification of the provisions under which a defendant may be absolved from liability even though a good cause of action is established against him.
It is not our concern to reach a decision as to how any of these questions should be answered. It is for Parliament to decide policy and our problem is solely that of interpreting certain parts of the Limitation Act 1963 in order to see how Parliament has in fact answered some of the questions which I have indicated.
The Act provides by s 1 that in the case of the actions to which the section applies (which are those to which I have referred above) s 2(1) of the 1939 Act is not to afford a defence insofar as the action relates to a cause of action in respect of which the court has granted leave and in respect of which certain requirements (see s 1(3)) are fulfilled.
There are rules of court which lay down how applications in the High Court for leave to proceed must be made (see RSC Ord 110). The application (by an ex parte originating summons) must be supported by an affidavit and the statement of claim which it is proposed to serve must be exhibited. Where an application is made before the commencement of an action (see s 2(2))--
'the court shall grant leave in respect of any cause of action to which the application relates if, but only if, on evidence adduced by or on behalf of the plaintiff, it appears to the court that, if such an action were brought forthwith and the like evidence were adduced in that action, that evidence would, in the absence of any evidence to the contrary, be sufficient--
(a) to establish that cause of action, apart from any defence under section 2(1) of the Limitation Act 1939, and
(b) to fulfil the requirements of subsection (3) of the preceding section in relation to that cause of action.'
So at the of an application before an action is commenced (and I need not refer to applications at other times) the court considers whether, if the adduced evidence was given and was uncontradicted, the pleaded cause of action would be established and whether the requirements of s 1(3) would be fulfilled. I need not deal further with this matter because I do not think that it is in doubt that in cases where leave has been given the issue whether the requirements of s 1(3) have been fulfilled is fully open at the trial. The present appeal relates to a case where the cause of action was established at the trial of the action and the only issue concerns the requirements of s 1(3). In considering the provisions of the Act it is, however, necessary to bear in mind that they are drafted so as to cover both the time when a court is looking prospectively at allegations of negligence, nuisance or breach of duty which are said to constitute a cause of action and also to the time when at the trial a cause of action has been established and when a decision has to be made after hearing all the evidence adduced at the trial whether the requirements of s 1(3) have been fulfilled. It is as though at the end of a trial in which the plaintiff has proved that the defendant is under a liability to pay him damages the plaintiff is asked: why did you not bring your action within the normally appropriate period?
The provisions of s 1(3) are all important. The requirements of the subsection are fulfilled in relation to a cause of action if it is proved that 'the material facts relating to that cause of action were or included facts of a decisive character which were at all times outside the knowledge (actual or constructive) of the plaintiff' until a date specified. There are here contained three terms of art which must only be given their specially assigned meanings. The first is 'the material facts relating to a cause of action'. That is specifically defined in s 7(3). The second is 'facts of a decisive character'. That is defined in s 7(4). The third is 'outside the knowledge (actual or constructive)'. That is defined in s 7(5).
The scheme of s 1(3) appears, therefore, to be to direct an enquiry whether there was a material fact relating to a cause of action (using this phrase not in any ordinary sense but as defined), which in a defined sense was 'decisive' and which in a defined sense was outside the knowledge of the plaintiff. I use the phrase a material fact because although s 1(3) speaks of 'the material facts relating to that cause of action' when one turns to the definition in s 7(3) it is said that any reference to 'the material facts relating to a cause of action is a reference to any one or more of the following ... ' This further suggests that (a) and (b) and (c) which follow each refers to one defined material fact. The first is:
'(a) the fact that personal injuries resulted from the negligence, nuisance or breach of duty constituting that cause of action'. In agreement with Stamp LJ ([1971] 3 All ER at 219, [1972] 1 QB at 268) I think that 'the negligence, nuisance or breach of duty constituting that cause of action' can be regarded as a single phrase. It covers the negligence, nuisance or breach of duty which at the time of an application for leave a plaintiff seeks to establish and also the negligence, nuisance or breach of duty which at the end of a trial a plaintiff will have established. If at the trial he fails to establish either negligence or nuisance or breach of duty then the defendant's defence based on s 2(1) of the 1939 Act becomes (so far as the plaintiff's claim is for damages for negligence or nuisance or breach of duty) of secondary importance.
Although the wording of (a) might suggest otherwise I incline to the view that the intention was to refer only to one 'material fact' and that that was the existence of personal injuries. Alternatively the reference is to two facts, ie (a) the fact of the existence of the personal injuries and (b) the fact that personal injuries resulted from that which in a single phrase is conveniently referred to as 'the negligence, nuisance or breach of duty constituting that cause of action', ie that which a plaintiff will seek to establish or that which he will have established. Whichever of these is correct I am in agreement with Stamp LJ when he said ([1971] 3 All ER at 219, [1972] 1 QB at 268):
'... the plaintiff brings himself within that paragraph if he can show merely that he did not know of the existence of the personal injuries. The paragraph is not, in my judgment, concerned with a previous absence of knowledge of the existence of a cause of action.'
But I recognise that the case might be approached on the basis that the fact denoted by (a) is a wider fact. It might be what Lord Denning MR called ([1971] 3 All ER at 211, [1972] 1 QB at 258) 'a composite fact which is really three facts rolled into one'. It is all the time to be remembered that what is under consideration is the knowledge of the plaintiff. Whether someone did or did not have some particular knowledge is, of course, a question of fact and pure fact. So on the basis of the wider view as to what is denoted by (a), the question that would be put to the plaintiff is the question: did you know that personal injuries resulted from the negligence, nuisance or breach of duty constituting your cause of action? In Scotland the question (see s 13(3)) would be: did you know that personal injuries resulted from a wrongful act or omission? To such questions the answer No might be given for various reasons, but if it was a question in regard to a 'composite fact' it might not be known what was the basis of the answer. A plaintiff might say No for the reason that he had not known that he had suffered any personal injuries. He might say No because, although he had known that he had personal injuries, he had not known that there was any negligence etc or wrongful act or omission. He might say No because although he had known that there was negligence etc or wrongful act or omission and although he had known that he had personal injuries he had not known that the latter resulted from the former. The view which I will later express as to the meaning of s 7(3) (c) is a view which applies whichever construction of s 7(3) (a) is thought to have been the one intended by Parliament.
A separate 'material fact' is denoted by (b), namely--
'the nature or extent of the personal injuries resulting from that negligence, nuisance or breach of duty'. If a plaintiff was aware of his personal injuries a fact outside his knowledge might be their nature or extent.
The other 'material fact' is denoted by (c), namely--
'the fact that the personal injuries so resulting were attributable to that negligence, nuisance or breach of duty, or the extent to which any of those personal injuries were so attributable.'
Again in agreement with Stamp LJ I think that for clarification it is helpful to note the words 'so resulting'. The reference back which is there denoted is a reference back to (a) and (b) so that if (c) were written out in full it would read:
'the fact that the personal injuries resulting from the negligence, nuisance or breach of duty constituting that cause of action were attributable to that negligence, nuisance or breach of duty or the extent to which any of those personal injuries were so attributable.'
In my view, the words 'were attributable' show that the 'material fact' which might have been outside the plaintiff's knowledge was the fact that he could attribute his personal injuries to negligence, nuisance or breach of duty. That means whether he could attribute them to what was in law negligence, nuisance or breach of duty. The language would, in my view, have been quite different if the fact that it had been intended to denote was the fact that personal injuries were caused by some act or omission in respect of which a claim might be made. The word 'attributable' is used in a section which has the words 'resulted' and 'resulting'. It must have its own meaning. If in a context of considering somebody's knowledge there is reference to knowledge of the fact that something is attributable to negligence (or breach of duty) it seems to me that what is being referred to is knowledge that something was capable of being attributed to or of being owing to or produced by negligence. The part of the Act now being considered has relation to the question whether a plaintiff can be excused for not having brought his action earlier than he did. If a plaintiff says that he did not know that he could sue, is that in some circumstances an excuse? Subject to a consideration of s 7(4) and (5) it seems to me that Parliament has said Yes if (a) he did not know that he had injuries resulting from the negligence, nuisance or breach of duty which are the basis of his cause of action or (b) if he knew that he had injuries but did not know of their nature or extent or (c) if knowing of his personal injuries and their nature and extent he did not know that he could attribute them (or the extent to which he could attribute them) in law to negligence, nuisance or breach or duty on the part of the defendant. He could not attribute something to negligence if he did not know that there had been negligence.
The fact (of which a plaintiff may have been ignorant) which is denoted by (c) must, I think, be a different fact from that denoted by (a) or (b) although the subsection is concerned with ignorance of 'any one or more' of them. The construction of s 7(3) (c) which is suggested by the appellants is that the subsection deals with the case where a plaintiff knows that he has suffered personal injuries but does not know that they are caused in a factual sense by or are a physical consequence of an act or omission of the defendant. But this construction involves a considerable variation of the language of the statute. The subsection speaks of 'personal injuries so resulting' being attributable to negligence or breach of duty. This is wholly different from the conception of injuries being a consequence of some act or omission. The conception of knowledge of injuries being 'attributable' to negligence involves that a person could assert not merely that his injuries were the result of something done by another person but could assert that that other person was negligent and so could be sued.
The matter can be tested in another way. It is said that s 7(3) (a) refers to physical injuries which are alleged to result from acts or omissions which it is alleged amount to negligence, nuisance or breach of duty constituting the cause of action. If this were so then as heed must be paid to the words 'so resulting' in sub-s (3) (c) the words in sub-s (3) (c) would then be read as--the fact that the personal injuries which resulted from the acts or omissions alleged to amount to negligence, nuisance or breach of duty constituting the cause of action were attributable to the acts or omissions which it is alleged amount to negligence, nuisance or breach of duty constituting the cause of action. But this suggestion that sub-s (3) (c) merely denotes as the fact of which a plaintiff may have been ignorant the fact that injuries were caused by some acts or omissions not only requires an unwarrantable expansion or variation of the language of the section but it fails to give adequate meaning to the word 'attributable'. If all that had been intended in (c) was the fact that injuries were the result of some act (or omission) the clear word 'result' could have been used. The conception of a state of knowledge or ignorance whether something was 'attributable' to negligence is, in my view, wholly different. In attribution there is a mental process. What is referred to in (c) is the fact that there could be an attribution to negligence.
If a trial has taken place and if a plaintiff who has suffered personal injuries has proved his cause of action he will not only have proved that he suffered personal injuries but also that they resulted from some act or omission of the defendant which involved a breach of some duty owed to the plaintiff. If the defendant has decided to plead the Limitation Act the plaintiff who will so far have been successful in his case must then face and answer the question: why did you not bring your action sooner? One answer (as the experience of recent years has shown) will often be: I did not know that I had suffered personal injuries or certainly their nature or extent. Another answer (as the experience of recent years has also shown) will often be: I did not know that I could sue. A typical case will be that of someone who knows or comes to know that he has suffered injuries in such a form as pneumoconiosis or asbestosis and who knows or comes to know that he has suffered those injuries while at work and because of the nature of his work but has no idea that he can it any way blame his employer or sue his employer. He would say: 'I did not know that I could put my injuries down to his negligence or breach of duty; I did not know that I could ascribe them or attribute them to his negligence. I did not know that I could sue him.' In my view, by enacting the sections now under consideration Parliament decided that such a plaintiff who has proved his case should not be debarred from recovery provided always that his ignorance was excusable. The tests as to this, which are by no means light ones, and the safeguards for defendants are to be found in other subsections of s 7. Thus under sub-s (4) if someone who has suffered personal injuries attributes them to his employer's negligence a question may arise whether he should not then have taken appropriate advice (see sub-s (8)) so as then to determine whether (apart from any defence under s 2(1) of the 1939 Act) an action would have a reasonable prospect of succeeding and of resulting in the award of damages sufficient to justify the bringing of an action. Furthermore (see sub-s (5)) mere ignorance by a plaintiff of a fact is not enough. If the fact was capable of being ascertained by him the question will arise whether he had taken all such action as it was reasonable for him to have taken for the purpose of ascertaining it. If he knew of circumstances from which with appropriate advice the fact might have been ascertained or inferred, had he taken all such action as it was reasonable for him to have taken for the purpose of obtaining appropriate advice with respect to those circumstances?
The legal position was, if I may respectfully say so, conveniently summarised by Lord Denning MR in Skingsley v Cape Asbestos Company Ltd. After referring to Pickles v National Coal Board he said ([1968] 2 Lloyd's Rep at 202):
'The case shows that, in the case of an industrial disease, time does not run against a man unless and until he has knowledge (actual or constructive) of these material facts: (i) that he is suffering from the disease; and (ii) that the disease is attributable to the negligence or breach of duty of his employers. Once he has sufficient knowledge (actual or constructive) of those facts, such that a reasonable person in his place (who was in receipt of competent medical or legal advice) would have realised that he had a worthwhile action, they are facts of a decisive nature and time then begins to run against him.'
In another case (Newton v Cammell Laird & Co (Shipbuilders & Engineers) Ltd ( [1969] 1 All ER 708 at 720, [1969] 1 WLR 415 at 421)) in reference to s 7(3) (c) and (4) Widgery LJ said:
'The missing fact which a man in his position could not know without being advised was that those circumstances would point to his having a worthwhile cause of action against the defendants.'
The respondent (the plaintiff) passed the statutory tests. Although he knew in January 1964 that he was suffering from pneumoconiosis and after that time knew that his disease had been caused by the inhalation of asbestos dust when employed by the appellants (as he was until September 1965), he first had actual or constructive knowledge that his disease was attributable in law to the appellants' negligence and or breach of statutory duty when he consulted solicitors at about the end of April 1967. The appellants do not suggest that he ought to have gone to his solicitors at any earlier date. The appellants do not challenge the finding that he acted reasonably. In these circumstances though his cause of action arose more than three years before the issue of his writ on 6 October 1967, the provisions of the 1963 Act deprive the appellants of a defence (which was the only defence that they could put forward) by pleading s 2(1) of the Limitation Act 1939.
It was urged that a situation might arise under which a defendant would be deprived of a limitation defence because a plaintiff had been given erroneous legal advice. It was further urged that a similar result (ie that a defendant would be deprived of a limitation defence) might be the consequence of a decision of a court pronouncing the law to be other than it had previously been thought to be. Any future problems must be considered when they arise but I am not necessarily filled with alarm at the thought that a plaintiff who proves liability in a defendant is not to be deprived of success if his delay in bringing an action was due to ignorance of his legal rights in circumstances which Parliament has thought to be excusable. I do not forget that there might be cases where a plaintiff succeeds in proving liability against a defendant only because the defendant was at a serious disadvantage owing to the lapse of time. Nor do I forget that there might be cases in which a dishonest plaintiff advanced reasons for delay which a defendant would have no means of refuting. Judges will not be unmindful of these considerations and in safeguarding the interests of defendants as well as of plaintiffs are not likely to allow a plaintiff too readily or easily to pass the tests which the statute imposes. Our only task, however, is to construe the statute. In my view, the Court of Appeal ( [1971] 3 All ER 204 , [1972] 1 QB 244 ) have done so correctly and I would dismiss the appeal.