Central Asbestos Co Ltd v Dodd
[1972] 2 All ER 1135(Judgment by: Lord Pearson)
Central Asbestos Co Ltd
v. Dodd
Judges:
Lord Reid
Lord Morris of Borth-Y-Gest
Lord PearsonLord 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 Pearson
My Lords, the provisions of s 7(3) of the Limitation Act 1963 are notoriously difficult to construe. I think one must try to ascertain the general intention which presumably prompted these provisions and to envisage the task which confronted the draftsman.
The case of Cartledge v E Jopling & Sons Ltd had brought to light the extreme hardship of a plaintiff finding that his claim had become barred by limitation before it had become apparent that he had suffered any injuries by reason of the defendants' acts or omissions. The Act was evidently intended to remove that hardship, but may also have been intended to go further and deal more generally with cases in which plaintiffs might through ignorance allow their claims to become barred by limitation. On the other hand, there is hardship on defendants if they are confronted with claims in respect of events which occurred many years ago. They must encounter great difficulty, if not impossibility, in trying to check the accuracy of the plaintiff's assertions, and they may be unable to call witnesses who could have given contrary evidence. There would be particular hardship on defendants if a plaintiff were allowed to say that he was wrongly advised many years ago (say ten or 20 years ago) that he had no worthwhile cause of action, and now he has been rightly advised that he has a worthwhile cause of action, and therefore he is suing now and his action is not barred by limitation. If that were allowed, there might even be an unscrupulous plaintiff falsely saying that he was wrongly advised many years ago by a solicitor or trade union official now deceased, and the defendants might have no means of exposing the falsehood. Having regard to the potential hardships on both sides, and also to the length and complexity of the provisions, I think it is reasonable to suppose that Parliament was intending to strike a fair balance between the reasonable interest of plaintiffs and the reasonable interest of defendants, so that neither side would be exposed to extreme hardship.
In order to strike that balance Parliament would have to draw a line somewhere between the kind of ignorance which is to be a sufficient excuse for lateness in bringing an action and the kind of ignorance which is not to be a sufficient excuse for such lateness. It seems to me that Parliament has drawn the line between ignorance of facts (material and decisive facts) and failing to drew the conclusions which a reasonable man, with the aid of expert advice, would have drawn from those facts as to the prospect of success in an action. If the plaintiff did not know one or more of the material and decisive facts, his lateness in bringing the action is excused. If he knew all the material and decisive facts, but failed to appreciate his prospects of success in an action because he did not take expert advice or obtained wrong expert advice, his lateness in bringing the action is not excused. It seems to me that is the broad effect of sub-ss (3) and (4) of s 7 of the Act. That is where the line is drawn.
Now what was the draftsman's task when he framed s 7(3) and (4) of the 1963 Act? The Limitation Act 1939 had provided for the period of limitation to start running as soon as the cause of action had accrued. That would be, in a case such as the present, as soon as the plaintiff had suffered the personal injuries in consequence of the defendants' wrongful conduct amounting to negligence or nuisance or breach of duty. Section 1(1) of the 1963 Act provided that the 1939 Act should not afford a defence in a case where the court granted leave for the purposes of that section and the requirements of sub-s (3) of that section were fulfilled. Section 1(3) provides:
'The requirements of this 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 [which is defined].'
The application for the leave of the court is made ex parte and, whether it is made before or after the commencement of the action, the proposed plaintiff or actual plaintiff has to satisfy the court that the evidence which he can adduce would, in the absence of any evidence to the contrary, be sufficient to establish his cause of action and to fulfil the requirements of s 1(3). That subsection contains terms requiring definition and the definitions will be found in s 7(3), (4) and (5). Subsection (3) of s 7 explains what is meant by 'the material facts relating to a cause of action', sub-s (4) explains what is meant by 'facts of a decisive character' and sub-s (5) explains what is meant by 'outside the knowledge (actual or constructive) of a person'. Section 7(3) provides:
'In this Part of this Act any reference to the material facts relating to a cause of action is a reference to any one or more of the following, that is to say--
(a) the fact that personal injuries resulted from the negligence, nuisance or breach of duty constituting that cause of action;
(b) the nature or extent of the personal injuries resulting from that negligence, nuisance or breach of duty;
(c) 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.'
In framing s 7(3) the draftsman had both to set out the material facts and to relate them to the cause of action alleged and prima facie established by the plaintiff. The material facts are the ingredients of the cause of action. In (a) the ingredient is the suffering of personal injuries by the plaintiff, and it is related to the cause of action by the words 'resulted from the negligence, nuisance or breach of duty constituting that cause of action'. In (b) the ingredient is the nature and extent of the injuries, and it is related to the cause of action by the words 'resulting from that negligence, nuisance or breach of duty'. In (c) the ingredient is the attributability of the personal injuries to the defendants' wrongful acts or omissions, and the injuries and the wrongful acts or omissions are related to the cause of action by the words 'so resulting' and the words 'to that negligence, nuisance or breach of duty'.
It seems to me that s 7(3) is referring to matters of fact, not conclusions of law. The matters set out in heads (a), (b) and (c) are 'the material facts'. The lawyer does not come on the scene in sub-s (3). He makes his hypothetical appearance in sub-s (4) as giving appropriate advice to the reasonable person, who is also hypothetical.
On the basis that head (c) is referring to matters of fact, what meaning is to be given to the words 'attributable to that negligence, nuisance or breach of duty'? The Oxford English Dictionary says that 'attributable' means 'capable of being attributed or ascribed, esp as owing to, produced by', and, as one of the meanings of the verb 'attribute', gives 'to ascribe, impute or refer, as an effect to the cause; to reckon as a consequence of'. Thus 'attributable to' refers to causation, but it has to cover cases of dual or multiple causation and perhaps another element of responsibility in the case of contributory negligence. For instance, there might be a case whether the plaintiff had been employed in an earlier period by the first defendant and in a later period by the second defendant, and his injured condition was due partly to the negligence of the first defendant and partly to the negligence of the second defendant. Or there might be a case where the plaintiff's injuries were partly due to the defendants' negligence and partly to his own contributory negligence. In such cases there would have to be an apportionment of the responsibility, and in the case of contributory negligence the apportionment would take into account degrees of blameworthiness as well as causative potency. If this involves another element additional to causation, it is aptly covered by the phrase 'attributable to'.
Now what is the 'negligence, nuisance or breach of duty constituting that cause of action'? I think this phrase refers to the defendants' conduct, because injuries do not result from legal concepts but may result from wrongful acts or omissions. The acts or omissions must be wrongful in the sense of involving a wrong as against the plaintiff, if they are to have significance for the purposes of an action for damages. I do not think the plaintiff has to know what is the proper legal label to be attached to the defendants' wrongful conduct. He does have to know as matter of fact that the defendants' conduct was wrongful as against him and that it brought about his injuries. In using the word 'wrongful' I am not intending to imply that he must form or obtain a legal opinion that the defendants' conduct was tortious; I mean that he has to know as matters of fact that the defendants were at fault and his injuries were attributable to their fault. He can know the matters of fact as a jury would decide them in a trial by judge and jury. The jury would be directed to decide which matters on a common-sense, factual basis. They might be asked, for instance, whether in their view the defendants failed to take reasonable precautions for the safety of their employees, whether they required their employees to work in a dangerously polluted atmosphere or whether they failed to comply with safety regulations. The jury would be asked also whether, if the defendants' conduct was wrongful, it caused the plaintiff's injuries. In a case of dual or multiple causation, they would be directed to apportion the responsibility.
In my opinion, the phrase 'the material facts' in s 7(3) can and should be given its natural meaning. It refers to matters of fact, not conclusions of law. The matters of fact are such as would be decided by a jury in a trial by judge and jury, and such as can be known by the injured person before he has taken legal advice.
The facts, however, have to be not only 'material' under s 7(3), but also 'of a decisive character' under sub-s (4), which provides:
'For the purposes of this Part of this Act any of the material facts relating to a cause of action shall be taken, at any particular time, to have been facts of a decisive character if they were facts which a reasonable person, knowing those facts and having obtained appropriate advice with respect to them, would have regarded at that time as determining, in relation to that cause of action, that (apart from any defence under section 2(1) of the Limitation Act 1939) an action would have a reasonable prospect of succeeding and of resulting in the award of damages sufficient to justify the bringing of the action.'
The test for 'decisive character' is purely objective; a hypothetical reasonable person is deemed to know the material facts and to take appropriate advice (presumably from the hypothetical legal adviser who is envisaged in the definition of 'appropriate advice' in sub-s (8)) and then he forms a hypothetical opinion as to the prospects of success in an action. The 'decisive character' of the 'material facts' depends solely on the results of this objective test, and does not depend at all on what the plaintiff knows or thinks or does or omits to do. Suppose that the plaintiff has for some good reason omitted to take legal advice, or that he has obtained legal advice which was wrong: that is the plaintiff's misfortune which does not deprive the material facts of their decisive character, if they qualify according to the objective test provided by sub-s (4).
Section 7(5) explains what is meant by a fact being 'outside the knowledge (actual or constructive) of a person'. Constructive knowledge is evidently brought in for the benefit of defendants, so that the plaintiff is, so to speak, debited with knowledge of a fact if he could have ascertained it by taking reasonable steps. This sub-s (5) is concerned with actual or constructive knowledge of facts by the proposed or actual plaintiff. It is not concerned with actual or constructive formation of a legal opinion by a hypothetical person, on hypothetical advice, as to the existence or non-existence of a worthwhile cause of action. Subsection (5) is linked with sub-s (3), which is the subjective subsection referring to the plaintiff's knowledge of facts. Subsection (5) is not linked with sub-s (4), which is the objective section referring to a hypothetical formation of a legal opinion.
For the reasons which I have given I am unable to agree with the view of Lord Denning MR ([1971] 3 All ER at 210, [1972] 1 QB at 258) that 'time does not run against a man until he knows, actually or constructively, that he has a worthwhile cause of action against his employer' nor with the view of Stamp LJ ([1971] 3 All ER at 219, [1972] 1 QB at 269) that 's 7(3) (c) while speaking of "the fact" is concerned with a legal right to bring an action for damages'. I agree with the contrary view of Edmund Davies LJ ([1971] 3 All ER at 216, 217, [1972] 1 QB at 265, 266) except that I think it should be made clear that the plaintiff does not know all the material facts unless he knows (as a matter of fact in the same manner as a jury would decide) that the defendants were at fault and that his injuries were attributable to their fault.
In previous decisions of the Court of Appeal one can trace the progressive development of the doctrine which I believe to be, on the true construction of these very complicated and difficult provisions, an erroneous doctrine, namely, that 'time does not run against a man until he knows, actually or constructively, that he has a worthwhile cause of action against his employer'. On the facts of the previous cases (except one) the decision might well have been the same, if the test which I consider to be the right test had been applied. In Pickles v National Coal Board it appears from the judgment of Lord Denning MR that the plaintiff at the relevant time did not know that the defendants were to blame for his silicosis. In Skingsley v Cape Asbestos Co Ltd the probable inference from the judgments is that the plaintiff at the relevant time did not know that the defendants were to blame for his asbestosis. Similarly in Newton v Cammell Laird & Co (Shipbuilders & Engineers) Ltd there is a probable inference to that effect. Also in Drinkwater v Joseph Lucas (Electrical) Ltd if the evidence of a witness 'From my conversation with the intended plaintiff on the said occasion I am sure that he had no idea whether or not the intended defendants had been negligent' was accepted. The position in Knipe v British Railways Board was more complicated. The injury to the plaintiff's knee occurred in March 1948, but it then appeared to be trivial, and its serious character was not ascertained until 1958. His ignorance of the nature and extent of the injury would excuse him for not bringing the action for the first ten years. After that the only material fact of which conceivably he might have been ignorant was the fact that his employers were to blame for the injury, but it seems more probable from passages in Lord Denning MR's judgment ([1971] 1 All ER at 675, 676, [1972] 1 QB at 366, 367) that the plaintiff knew this material fact from the beginning in 1948.
I have endeavoured to explain how I interpret the difficult provisions of s 7(3) of the 1963 Act. It remains to apply the provisions so interpreted to the facts of this case. This is an equally difficult task, because the learned judge, loyally following the ratio decidendi of previous decisions of the Court of Appeal, applied a test which I consider to be wrong, and he found the facts in relation to that test. There are no specific findings on what I think are the crucial questions, namely: did the plaintiff in 1964 or 1965 know that the defendants had been at fault and that his injuries were attributable to their fault?
There is a significant passage in his evidence in cross-examination:
'Q ... you have known ever since January 1964 that you had a disease of the lungs caused by inhaling asbestos dust?
A Yes.
'Q You say you have known throughout the whole time, ever since 1958 at the latest, that there was more dust than there ought to have been at the factory?
A Yes.
Q You have known ever since 1964 that the firm were prosecuted and fined for having too much dust?
A Yes--I was told about it.'
I think that any ordinary employee, knowing these facts, would have known that the appellants were at fault and that his injuries were attributable to their fault. But the learned judge at the trial, who saw and heard the respondent and the other plaintiffs giving evidence, came to the conclusion that they were in an exceptional position. They did not belong to any trade union, and they did not think of making any claim against their employers, at any rate in respect of asbestosis. The foreman had told the respondent that if you had contracted asbestosis you could claim disablement benefit but you could not sue your employers, and the respondent believed him. In consequence of what the foreman had told him the respondent did not take any expert advice. I think the learned judge took the view that, after the respondent had received this information or opinion from the foreman, it was reasonable for him not to seek expert advice and therefore constructive knowledge was not to be imputed to him. But did he have sufficient actual knowledge of the material facts? In a passage in his affidavit, which was quoted by the learned judge, the respondent said:
'I did not appreciate and no-one told me that I had contracted the disease as a result of the proposed Defendants' [i e the appellants'] negligence and breach of statutory duty.'
That might mean only that he did not know what legal label should be attached to the appellants' wrongful conduct, but it is also capable of meaning that he did not appreciate that the appellants were at fault and that his injuries were attributable to their fault. On the peculiar facts of this case, and at this stage of the case, I think it is fair to resolve this doubt in favour of the respondent and to assume in his favour that he did not know all the material facts and consequently that the period of limitation did not begin to run against him. Thus, while I agree (in substance at any rate) with the opinions of my noble and learned friends, Lord Simon of Glaisdale and Lord Salmon, as to the proper construction of the relevant statutory provisions, I take a different view as to the result of this appeal.
I would dismiss the appeal.