Central Asbestos Co Ltd v Dodd

[1972] 2 All ER 1135

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(Judgment by: Lord Simon of Glaisdale)

Central Asbestos Co Ltd
v. Dodd

Court:

Judges: Lord Reid
Lord Morris of Borth-Y-Gest
Lord Pearson

Lord Simon of GlaisdaleLord 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)

Hearing date: 17, 18, 19, 20 April 1972
Judgment date: 28 June 1972

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Judgment by:
Lord Simon of Glaisdale

My Lords, the respondent has suffered grievously as a result of his employers' negligence; and there can be none who would not wish to see him compensated, if this could be done without bringing the law into disarray or misinterpreting Parliamentary intention. Although insurance companies perform a useful function, they are not apt to evoke the same sympathy as an individual in the position of the respondent. But your Lordships are concerned with an issue which far transcends the individual case--with the Parliamentary modification, in the interest of justice to an ascertainable class of litigant, of a longstanding general principle of English law, itself framed to sustain justice generally. The question is how far Parliament intended to derogate from that general principle.

Litigation is the resolution of civil contention by methods preferable to violence. But that does not mean that it is otherwise an inherently desirable activity. The rule of law is not to be equated with the reign of litigiousness. Litigation involves a call on scarce resources, and it is apt to set up emotional and social strains of its own; no one with experience of litigation would suppose that Miss Flite was a purely fanciful creation. Hence the desirability of forensic dispatch. There can be a few circumstances in which contentions within a society can be prolonged unresolved without risk to the fabric of that society. Moreover, dilatory procedures may defeat the very purpose of the judicial process, namely, to vouchsafe justice, since if litigation is prolonged, not only is there waste of time and money and moral energy, but circumstances may change in such a way that what would have been at the outset a just conclusion is in the end no longer so. Finally, delay will make it more difficult for the legal procedures themselves to vouchsafe a just conclusion--evidence may have disappeared and recollections become increasingly unreliable. Speedy rough justice will, therefore, generally be better justice than justice worn smooth and fragile with the passage of years. For these reasons English law took over and to its heart from the civil law the maxim that it is in the interest of the commonwealth that there should be some end of litigation. Society requires that the law should be able to draw a line finally closing the account between contestants. This rule that there must be some end to litigation finds expression in a number of legal doctrines--all established in the knowledge that in some cases a rightful remedy might be thereby withheld, but also in the conviction that this is a necessary price to pay for the advantages of celerity and some sort of finality in the legal process. One such doctrine is that of res judicata. Another is that of laches. A third is the law as to prescriptive rights. A fourth, with which your Lordships are instantly concerned, is embodied in the various statutes and Acts of limitation, the purpose of which is to ensure that legal rights are vindicated with reasonable promptitude--for reasons both of social stability and of fairness to defendants. The great American judge, Justice Story, delivering the judgment of the Supreme Court of the United States, called (Bell v Morrison (1828)1 Pet SC (26 US) 351 at 360) the Limitation Act 1623 (21 Jac 1, c 16)--

'a statute of repose ... to afford security against stale demands, after the true state of the transaction may have been forgotten, or be incapable of explanation, by reason of the death or removal of witnesses.'

And Best CJ called it (A'Court v Cross (1825) 2 Bing 329 at 332, 333) 'an act of peace. Long dormant claims have often more of cruelty than of justice in them'.

The main modern Act laying down limitation periods is the Limitation Act 1939. This gave a plaintiff in circumstances such as those in the instant appeal six years to bring his action from the date when his cause of action accrued. Parliament must, however, have felt that, in view of the policy which lay behind the Limitation Acts, six years was too long; the Law Reform (Limitation of Actions, etc) Act 1954 reduced the period to three years.

The law deals with general situations, and so frames its precepts that justice may be done in the generality of cases envisaged. Inevitably there will be exceptional cases where the general rule will fail to do justice. Although it will often make bad law for the generality if the rule is shaped peculiarly to meet the isolated hard case, there may be a sufficiently defined class to be capable of exceptional treatment without derogating from the justice of the general rule. This is the situation which arose as a result of Cartledge v E Jopling & Sons Ltd. There the plaintiffs had contracted pneumoconiosis by reason of the defendants' breaches of duty to use proper care for their safety. But their cause of action was barred, because the period of limitation began to run against them from the time they suffered injury by reason of the defendants' breaches of duty (since that was when their cause of action accrued), although they neither knew nor could have known then that they had suffered injury. This House pointed out the obvious injustice and that it was readily capable of remedy (though referring to the more elaborate scheme proposed by a committee).

The consequence was the Limitation Act 1963, the construction of which is in instant issue. Obviously a draftsman devising a remedy for the situation in Cartledge v Jopling (where the plaintiffs knew of the defendants' breaches of duty, but did not and could not know of their own injury caused thereby) would not, even irrespective of any committee's report, limit himself to that situation. He would immediately consider its equally cogent converse (where the plaintiff knows of his own injury, but does not and could not know that it was caused by breach of duty on the part of the defendant) (cf Wright v Dunlop Rubber Co ((1971) The Times, 22 April); see also Stokes v Guest, Keen & Nettlefold (Bolts & Nuts) Ltd, although no question of limitation arose in that case). But having considered these two converse situations as equally calling for remedy, the draftsman would at once think of a third, namely, where the plaintiff knew that he had suffered some injury as a result of the defendant's breach of duty, but did not and could not know that it was a serious injury (see Fitter v Veal, cited in Cartledge v Jopling ([1963] 1 All ER at 350, [1963] AC at 780); Smith v Leech Brain & Co Ltd).

It was argued for the appellants that these are the three situations dealt with separately in paragraphs (a), (c) and (b) respectively of s 7(3) of the Act. This would certainly seem a natural and rational way to draft from a technical point of view; and the Act would then be limited to dealing with the Cartledge v Jopling situation and its obvious necessary corollaries. But it was argued for the respondent that the draftsman was dealing in para (a) not with one situation, but with two--not only with knowledge of injury, but also with knowledge of its causative connection with the defendant's breach of duty--not only with the Cartledge v Jopling type of case, but also with the Wright v Dunlop Rubber Co ((1971) The Times, 22 April) type of case. Counsel for the respondent emphasised that para (a) refers not only to 'personal injuries' but also to the fact that they 'resulted from' the negligence etc Since, he argued, para (a) deals with knowledge of both the fact of injury and its causative connection with the (alleged) negligence etc, para (c) must deal with knowledge of something other than causative connection. The only other thing with which it could deal, consistently with its wording, is knowledge that cumulatively the plaintiff's injuries, the defendant's negligent acts or omissions, and their causative connection, amounted in law to a cause of action.

This would, however, be, technically, a very odd way to draft--with two criteria in para (a) and then one each in (b) and (c). Moreover, the principle that ignorance of the law provides no excuse is a fundamental principle of Engligh law: it is so listed in Broom's Legal Maxims ((10th Edn, 1939) p 169) i, and it certainly has powerful practical considerations to justify it. It would be very strange if so fundamental a principle of Engligh law were to suffer such an inroad in so oblique and obscure a way. Thirdly, there was nothing in Cartledge v Jopling to suggest such an extension; whereas the admitted extensions in paras (b) and (c) of the remedy in para (a) for the Cartledge v Jopling situation are natural corollaries. Finally, the respondent's construction produces some truly startling results.

On the respondent's construction the limitation period is suspended not merely in the case of a person who knows all the material facts, and is only oblivious of their legal consequences; it is also suspended in the case of a person who is misinformed about their legal consequences. In Stewart v Stewart the plaintiff was held bound to an agreement by way of family arrangement into which she had entered through ignorance of her rights and by reason of the erroneous advice of the family law agent, who had advised all the parties. Even in those circumstances, ignorance of the law was not allowed to affect legal rights; it was held that only on the basis of such a rule could practical arrangements be entered into with safety ((1839) 6 CL & Fin at 970). But the respondent's construction goes beyond obliterating this fundamental legal principle as regards actions in negligence in respect of personal injuries. The advice may be perfectly correct at the time it was given, but subsequently turn out to be wrong. In Knipe v British Railways Board the plaintiff, injured in 1948, was advised by his trade union in 1959 that any cause of action he might have was statute-barred. This was correct advice at the time, since the 1963 Act had not yet been passed, and it was only that Act which could suspend the limitation period in his case. It was held by the Court of Appeal that the limitation period did not begin to run against the plaintiff until the time when, after the passing of the 1963 Act (when for the first time ignorance of the extent of the injuries alleged was made a ground for suspension of the commencement of the limitation period), it would have been reasonable for him to have ascertained that he had a 'worthwhile cause of action' (a non-statutory phrase coined in the course of consideration of the 1963 Act and since employed as a talisman). But in case Knipe v British Railways Board should be considered as in any event going too far, your Lordships will undoubtedly wish to weigh the impact of the respondent's construction on a case quite recently under your Lordships' consideration. In British Railways Board v Herrington your Lordships redefined an occupier's duty to infant trespassers in a manner more extensive than had been laid down in R Addie & Sons (Collieries) v Dumbreck. If the argument for the respondent is correct, all those infant trespassers who were correctly advised, perhaps decades ago, on the basis of Addie v Dumbreck, that they had no cause of action can now sue if they can bring themselves within the duty as defined in Herrington's case. And lest it be objected that the draftsman in 1963 could not know that in 1966 your Lordships would assume power to depart from previous decisions of this House, the matter can be tested by a case within the knowledge of every student of the law, Donoghue (or McAlister) v Stevenson. That case decided more than that a duty of care is owed to consumers of snails in ginger-beer bottles--under our system, decided cases yield a principle, which is then of general application. Can the draftsman of the 1963 Act really have intended that a plaintiff should have been able to say in such circumstances, 'I went to the most eminent solicitor in London. He took me to junior counsel of vast learning; and we then had a consultation with the most fashionable leading counsel of the day. No one can say that I did not seek and receive "appropriate advice". Yet they all advised me the law was as it was subsequently stated by Lord Buckmaster and Lord Tomlin, and that I had no cause of action. But I now find that the law is as was stated by Lord Atkin, Lord Thankerton and Lord Macmillan, and that I have got a cause of action. The limitation period did not start to run against me until I learnt by chance that Donoghue v Stevenson was applicable to my case'. Such a situation frequently arises under our legal system: for example, the Court of Appeal recently made it clear that liability for attack by a dog could accrue even in the absence of scienter (Draper v Hodder). Did the draftsman really intend that in these instances no line could safely be drawn closing the account between the contestants? Are actions not to be barred until laymen should learn the law, and learn it correctly--prophetically, if necessary? If so, whole trainloads of tardy litigants have been driven through the Limitation Acts.

My Lords, before accepting results so astonishing, so inconvenient, so subversive of established principle and so unjust to defendants I should require to find an intention that this should be so expressed in plain words. I find no such thing. On the contrary, the draftsman has, in my view, expressed himself as contended for on behalf of the appellants. I have had the advantage of reading the speech prepared by my noble and learned friend, Lord Salmon; and since I agree entirely with his analysis of the Act, there would be no advantage in my covering the same ground.

I would only add one thing. The contention for the respondent was based on the argument that para (a) of s 7(3) interpreted as 'material facts' not merely 'personal injuries' (as the appellants contend) but also their causative connection with the alleged negligence ('resulted from')--not one type of material fact, but two. However, the equivalent Scottish paragraph, s 13(3) (a), which must mean the same as the English but spells it out more clearly reads: 'the fact that personal injuries resulted from a wrongful act or omission'. If this is intended to refer to knowledge of more than one type of material fact, it refers not to two but to four: (i) personal injuries (ii) resulted from (iii) an act or omission (iv) which was wrongful. If, as is necessary common ground, it was not intended to embrace knowledge of all four types of fact, I can see no reason why it should extend to the first two, rather than the first alone. The latter makes sense, it fits in with the likely extent of remedy for an ascertainable mischief, and it does not subvert established principle based on justice and convenience.

I would allow the appeal.