Central Asbestos Co Ltd v Dodd
[1972] 2 All ER 1135(Judgment by: Lord Salmon)
Central Asbestos Co Ltd
v. Dodd
Judges:
Lord Reid
Lord Morris of Borth-Y-Gest
Lord 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 Salmon
My Lords, the respondent, Mr Dodd, started working for the appellants in 1952. He continued in that employment until September 1965. During the whole of this period his work was that of a labourer or millhand in the appellants' workshop where various processes connected with asbestos were carried out. There are grave dangers involved in working with asbestos which have been well known at any rate since 1931 when the Asbestos Industry Regulations (SR & O 1931 No 1140, revoked and replaced as from 14 May 1970 by SI 1969 No 690) came into force. These regulations laid down the precautions which employers were bound to take for protecting their workmen against the inhalation of asbestos dust and asbestos fumes. It is unnecessary for me to recite these regulations as it is accepted that they were all consistently breached by the appellants. From 1953 onwards factory inspectors wrote to the appellants complaining that, as a result of the applicants' breaches, the conditions of work were dangerous to the health of their workmen and indeed that these conditions were lethal. The appellants appear to have taken little if any notice of these letters and the conditions of work remained much the same as before. It is very odd that this state of affairs was allowed to continue without any positive action being taken until 1964. The appellants were then summoned and fined in all £170. There was even then little improvement; ineffectual complaints were still being made by the factory inspector in 1967. The appellants have since closed down.
As a result of these consistent breaches by the appellants and the supine attitude adopted by the factory inspectors the respondent and his fellow workmen were constantly exposed for years to the dangers inherent in inhaling asbestos dust or fumes into their lungs. As a result, they contracted asbestosis which is a form of pneumoconiosis. This is a most insidious and dreadful disease. In its very early stages it produces no symptoms. Later the victim experiences a slight cough and breathlessness which go on getting worse. The progress of the disease is irreversible. It inevitably leads to increasing incapacity, enfeeblement, discomfort and ultimately death. The only question is how long it takes to kill--in some cases many years; in others, comparatively few.
The respondent was not diagnosed as suffering from this disease until January 1964, when he was advised by the Pneumoconiosis Medical Panel not to go on working with asbestos. He was, however, earning good money. He did not feel ill and accordingly he ignored the advice. He did, however, claim and obtain an award of disablement benefit at the rate of 11s 6d a week from March 1964, on the basis of 10 per cent disablement. In 1965 he was away from work for 11 weeks because of chest trouble and as a result of the attitude adopted by his doctor, he left the appellants' employment in September 1965 and obtained employment with the Home Office.
It is common ground that from September 1965 he knew that he had 'caught' asbestosis by inhaling asbestos dust and fumes, as a result of the conditions under which the appellants required him to work. He knew that the appellants had been convicted because of their responsibility for these conditions. He knew that the nature and extent of his illness made it imperative for him to give up working in the asbestos industry. What he did not know in 1965 was that he had any cause of action to recover damages from the appellants. This he did not discover until April 1967, when he consulted a solicitor on learning that one of his former fellow workmen was suing the appellants. He had not previously consulted a solicitor because the appellants' works manager (who was also suffering from asbestosis) had told him late in 1963 that 'if you get asbestosis there is a panel who will pay you compensation, but you can't sue your employers'.
The writ in the present action was issued on 6 October 1967. At the trial the respondent recovered damages of £13,700 for negligence and breach of statutory duty. The appellants' appeal was dismissed by the Court of Appeal ( [1971] 3 All ER 204 , [1972] 1 QB 244 ) and they now appeal to this House. The appellants conceded in this House that the respondent's disease constituted an injury and was caused by their wrongful acts and omissions and that these constituted negligence and breaches of statutory duty. The respondent accordingly had had a good cause of action against the appellants entitling him to the damages awarded but the appellants contended that this cause of action was statute-barred by the Limitation Act 1939, as amended by the Law Reform (Limitation of Actions, etc) Act 1954. The only question that arises in this appeal is whether that defence is defeated by the provisions of the Limitation Act 1963. The circumstances which I have recited make it plain that the appellants' case is not exactly shining with merit and that the respondent deserves much sympathy if he is to be deprived of the fruits of the victory which he won in the courts below.
The policy lying behind the Limitation Act 1939 is that because of the public interest in the administration of justice, as a rule claims should not be long delayed. It is not usually fair to defendants that, many years after a cause of action is alleged to have arisen against them, they should be faced with the necessity of defending a claim in a court of law; the risk of their witnesses having died or disappeared or their memory having failed is very great. This is particularly true of actions for damages in respect of alleged personal injuries alleged to have been caused by negligence, nuisance or breach of duty. A long delay will, therefore, often seriously prejudice the defendant and indeed make a fair trial of the issues in dispute impossible. This factor has often been referred to in our courts, see eg Allen v Sir Aflred McAlpine & Sons Ltd. There are, no doubt, cases, and this clearly is one of them, in which there is no real dispute on the facts and real hardship will arise if the claim is statute-barred. Nevertheless Parliament reaffirmed by the Limitation Act 1939 (which replaced the Limitation Act 1623 (21 Jac 1, c 16)), that on balance, the public interest demanded that in the present class of action the writ must be issued within six years of the cause of action arising. This period of limitation was reduced to three years by the 1954 Act.
In Cartledge v E Jopling & Sons Ltd the plaintiffs contracted pneumoconiosis by reason of the defendants' negligence or breach of duty and their cause of action arose at a date long before they knew or could possibly have known that they were ill. Accordingly, the period of limitation (in that case six years) began to run against them from the date to which I have referred. This House pointed out that it was grossly unfair that the period of limitation should begin to run against a plaintiff before he had any means of knowing that he had suffered injury and that accordingly an amendment of the law was urgently needed. As a result, the Limitation Act 1963 was passed.
On any view of this Act, it went further than was necessary to remedy the particular injustice which had arisen in Cartledge v Jopling. The question is, how far did it go? Did it mitigate the harshness of the Limitation Act 1939 only when a plaintiff did not know and could not reasonably have discovered the material facts relating to his cause of action or did it rescue him when, although he knew the facts, he was ignorant of their legal consequences?
I must now set out the relevant provisions of the 1963 Act:
1.
(1) Section 2(1) of the Limitation Act 1939 (which, in the case of certain actions, imposes a time-limit of three years for bringing the action) shall not afford any defence to an action to which this section applies, in so far as the action relates to any cause of action in respect of which
...
- (b)
- the requirements of subsection (3) of this section are fulfilled.
(2) This section applies to any action for damages for negligence, nuisance or breach of duty ... 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.
(3) 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--
(a) either was after the end of the three-year period relating to that cause of action or was not earlier than twelve months before the end of that period, and (b) in either case, was a date not earlier than twelve months before the date on which the action was brought ...
7
...
(3) 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.
(4) 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.
(5) Subject to the next following subsection, for the purposes of this Part of this Act a fact shall, at any time, be taken to have been outside the knowledge (actual or constructive) of a person if, but only if,-
- (a)
- he did not then know that fact;
- (b)
- in so far as that fact was capable of being ascertained by him, he had taken all such action (if any) as it was reasonable for him to have taken before that time for the purpose of ascertaining it; and
- (c)
- in so far as there existed, and were known to him, circumstances from which, with appropriate advice, that fact might have been ascertained or inferred, he had taken all such action (if any) as it was reasonable for him to have taken before that time for the purpose of obtaining appropriate advice with respect to those circumstances
...
(8) In this section "appropriate advice", in relation to any fact or circumstances, means the advice of competent persons qualified, in their respective spheres, to advise on the medical, legal and other aspects of that fact or those circumstances, as the case may be.
This Act has been before the courts on many occasions during its comparatively short life. I do not think that there are many judges who have had to consider it who have not criticised the wholly unnecessary complexity and deplorable obscurity of its language. It seems as if it were formulated to disguise rather than reveal the meaning which it was intended to bear. Looking at s 1(3) it is highly unlikely that even the draftsmen of this piece of legislation would have used the words 'the material facts relating to that cause of action' had they intended to include points of law. If they had intended to include points of law they could, with consequential amendments of the subsequent sections, so easily have used the words 'material circumstances' or 'material matters' or 'material factors' any of which might quite plausibly have included points of law. The difference between fact and law, like that between bitter and sweet, is fairly well known. If 'bitter substances' were referred to in one section of an Act, I would not expect the definition section to include sugar among the meaning of those words any more than I would expect the definition section in the 1963 Act to include a point of law in its definition of a material fact. No doubt, you can have a question of mixed fact and law. There are, however, many cases in which the facts are admitted and the question is, do they in law establish nuisance or do they in law, ie on the proper construction of a statute, constitute a breach of statutory duty or do they prove damage which is not too remote in law?
No doubt the state of a man's mind, eg whether he knows or is ignorant of the law is itself a question of fat. But the 'fact' which counsel for the respondent contends was outside the respondent's knowledge was not the state of his mind but the legal consequences of the appellants' acts and omissions, ie a point of law.
I must now consider s 7, the definition section, to see whether it permits the words 'material facts' in s 1(3) to be read as including material points of law. If one looks at s 7(3) (a) in isolation it would seem that this must be so. Lord Denning MR so read it in the present case. He said ([1971] 3 All ER at 211, [1972] 1 QB at 258): ' ... s 7(3) (a) is a composite fact which is really three facts rolled into one, namely: (i) "personal injuries"; (ii) "resulting from"; (iii) "the negligence nuisance or breach of duty".' It may well be that a man may know all the material 'facts' in the ordinary sense of that word but that if he does not know that in law they amount to negligence, nuisance or breach of duty he cannot know that his injuries resulted from negligence, nuisance or breach of duty. At first sight this, I confess, seemed to me to be obviously the right view of sub-s (3) (a).
Subsection (3) (a) must, however, be looked at in its setting in the Act. The Act contemplates, and is intended to deal only with, situations in which a plaintiff has a valid cause of action, a writ has been issued and a statement of claim served alleging that the plaintiff has suffered injury caused by certain acts or omissions of the defendant which constitute negligence, nuisance or breach of duty. Counsel for the appellants contends that sub-s (3) (a) relates only to the existence of personal injuries; it is really an elliptical way of describing personal injuries alleged to result from the acts and omissions alleged to amount to the negligence, nuisance or breach of duty constituting the cause of action pleaded. I have come to the conclusion that he is right on that point. Once it is shown that the draftsmen got off on the wrong foot by so clumsily defining the existence of personal injuries everything which follows sub-s (3) (a) seems to fall into place.
Subsection (3) (b) means the nature and extent of the personal injuries alleged to result from acts and omissions alleged to constitute negligence, nuisance or breach of duty. Subsection (3) (c) means the fact that the personal injuries alleged to result from the acts and omissions alleged to constitute negligence, nuisance or breach of duty were attributable to those acts and omissions. In other words, para (a) deals with the existence of injuries, para (b) with their nature and extent and para (c) with their causation by the acts and omissions complained of.
No other construction seems to me to make it reasonably possible to give effect both to para (a) and to para (c) of sub-s (3). If, contrary to my view, para (a) means what at first sight and read alone it appears to mean, namely, the fact that personal injuries resulted from what in law amounts to negligence, nuisance or breach of duty, the first part of para (c) adds nothing for it could they only mean that--
'the fact that the personal injuries resulting from what in law accounts to negligence, nuisance or breach of duty was attributable in law to negligence, nuisance to breach of duty ... '
This is merely a repetition of para (a).
If, on the other hand, para (a) bears what, in my view, is its true meaning, one can only give the first part of para (c) the meaning for which the respondent contends by attributing a different meaning to the words 'negligence, nuisance or breach of duty' in para (a) from the meaning of the same words in para (c). In para (a) these words would mean the acts and omissions alleged to constitute negligence, nuisance or breach of duty whilst in para (c) they would mean the legal concept of negligence, nuisance or breach of duty.
I of course recognise that the generally accepted canons of constitution should be regarded as our guides but not our masters and accordingly that sometimes, though rarely, the same words may be given a different meaning in different parts of the same statute. Nevertheless, I find it impossible to hold that the words 'negligence, nuisance or breach of duty' can properly be given an entirely different meaning in para (a) from the meaning they bear in para (c) of the same subsection of s 7 of the 1963 Act especially when it is only by giving them different meanings that you can arrive at the curious result that the draftsman who chose the words 'material facts' in s 1(3) intended to define material facts as points of law or, what is the same thing, the legal consequences of material facts.
Moreover, I find the construction of para (c) for which counsel for the respondent contends equally difficult to reconcile with s 7(4). this subsection has nothing to do with what any particular plaintiff believes. It is concerned only to define what material facts referred to in sub-s (3) are of a 'decisive character' within the meaning of those words in s 1(3). The test is objective, namely, what--
'a reasonable person, knowing those facts and having obtaining appropriate advice with respect to them, would have regarded ... as determining ... 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 an award of damages sufficient to justify the bringing of the action'.
If a reasonable person knows that personal injuries were in law attributable to or resulted from or caused by (all much the same) negligence, nuisance or breach of duty, he would necessarily know that an action would have a reasonable prospect of succeeding. Accordingly, if para (c) of sub-s (3) bears the meaning for which the respondent contends, it is difficult to see how the words 'an action would have a reasonable prospect of succeeding' could have been included in sub-s (4).
Subsection (5) defines any fact (and I think that this alludes to the facts set out in sub-s (3)) which may be taken at any time to have been outside the actual or constructive knowledge of any person. Paragraph (b) of sub-s (5) makes it plain that any such fact shall be deemed to be outside the constructive knowledge of any person if, but only if,--
'in so far as that fact was capable of being ascertained by him, he had taken all such action (if any) as it was reasonable for him to have taken ... for the purpose of ascertaining it'.
Paragraph (c) of sub-s (5) merely emphasises that in certain circumstances 'such action' may include taking medical or legal advice. A person sometimes knows facts which in the circumstances should suggest that it would be reasonable for him to take legal advice to discover whether he has a good cause of action. The lawyer often says, 'These facts of which you have told me by themselves are insufficient but if we can ascertain certain other facts, namely, (a) (b) and (c), you will have a good cause of action'. And as a result of that advice, the further necessary facts are not infrequently ascertained. It seems to me that a man is fixed with constructive knowledge of these further facts if he has foreborne to take legal advice in circumstances in which it would have been reasonable for him to have done so.
I recognise that on the construction of the statute which I favour, if a man who takes legal advice is wrongly advised that there are no further material facts to be ascertained and consequently remains in ignorance of material facts of a decisive character he will be protected by the statute, whereas if he is wrongly advised that the facts he has discovered would not in law afford him a remedy he will lose the protection of the statute. This does not, however, alter my opinion. In my view, the purpose of the legislature was to protect persons against their lack of knowledge of facts which they could not reasonably have ascertained. No doubt as a matter of policy the legislature might have protected ignorance of the law as well as ignorance of fact, but it did not do so. Ignorance of the law as a rule is no excuse. If Parliament had intended to make an exception in this field it would, I think, have done so in far plainer language. It certainly would not have reiterated, as it does in this statute, that it is legislating only in relation to the plaintiff's lack of knowledge of material facts.
In the present case the respondent knew, certainly as early as 1965, substantially all the material facts alleged in the statement of claim namely, that there was more dust in the factory than there ought to have been, that this excess of dust had caused his disease and that the appellants had been prosecuted and fined in respect of it. It necessarily follows from this that he must have known that the appellants had failed to take reasonable care to prevent the excess of dust which had caused his disease. The only thing that he did not know was the legal consequences of those facts, namely, that in law they afforded him a good cause of action. Indeed he had been told the contrary by the appellant's works manager in 1963 who said that 'if you were drawing disablement benefit you would not be able to make a claim against the firm'. I have every sympathy with the respondent although he was perhaps lucky in the finding of fact that he had not been unreasonable in failing to seek further advice. There are no doubt a considerable number of cases in which an unmeritorious defendant escapes and a meritorious plaintiff suffers hardship because of his action being statute-barred owing to bad advice on the law from his trade union or solicitor. In such a case, although this unfortunately is not one of them, a plaintiff may well have a remedy against his advisers by way of damages for negligence. I do not find it strange that the statute does not afford protection to such a plaintiff. Of course it might have done, but the legislature has to strike a balance between what justice demands as between plaintiffs and defendants generally. The vast majority of personal injury actions turn on question of fact rather than points of law; much depends on how the court evaluates the recollection of the plaintiff and his witnesses as to how the accident occurred. A plaintiff is most unlikely to succeed on evidence of a material fact of a decisive character of which he had had no knowledge until years after the cause of action arose unless the authenticity of that fact is beyond doubt. On the other hand, it would open the door very wide if many years after an accident had occurred and the defendant's witnesses dispersed, a plaintiff who professed vividly to remember the facts could excuse his delay in bringing the action by relying on wrong advice on the law said to have been given to him by a trade union official or solicitor in the dim past. Knipe v British Railways Board affords a good illustration of what necessarily occurs if the construction of the Act for which the respondent contends is correct. More than 20 years after the plaintiff in that case had, as he alleged, fallen on some stairs as a result of the defendant's negligence, he brought an action claiming damages. The first part of the delay was properly excused on the ground that he did not know the extent of his injury, the last ten years of the delay on the ground that in 1959 he had been wrongly advised by his union that he had no claim in law. I wonder what sort of chance the defendant could have had of bringing any evidence as to what the condition of the stairs in question had been some 20 years before the action was tried. However this may be, I am satisfied that the true construction of s 7(3) is that for which the appellants contend. It follows that, in my view, the words 'a wrongful act or omission' in s 13(3) mean an alleged wrongful act or omission and the effect of that subsection is the same as that of s 7(3). It follows also that some of the dicta in Pickles v National Coal Board; Skingsley v Cape Asbestos Co Ltd; Drinkwater v Joseph Lucas (Electrical) Ltd (which were decided ex parte and to the last of which I was a party) and in Newton v Cammell Laird & Co (Shipbuilders & Engineers) Ltd are open to criticism. Nevertheless the decisions in those cases are correct because (so far as one can tell from the reports) the plaintiffs (unlike the plaintiff in the present case) did not know at the material time that their disease had been caused by any fault of the defendants. Knipe v British Railways Board however, was in my view wrongly decided and should be overruled.
For these reasons I would allow the appeal.