George Collins v Sec.of State for Business Innovation and Skills
Disease Aware Issue 3
This case is a rarity - a successful limitation defence to an asbestos claim. Its success was owed to two principal factors - the enduring effect of the Johnson case, and the particular subtleties of asbestos lung cancer litigation.
This claimant's lung cancer was allegedly caused by exposure to asbestos while employed at Tilbury docks in London from 1947 to 1967, initially as a stevedore and subsequently as a crane driver. The action was defended on liability, causation and limitation issues.
The claimant submitted three statements. These gave conflicting accounts of the extent of his exposure to asbestos and his smoking history.
The currently accepted method (doubling of the risk) of proving causation in lung cancer requires an accurate assessment of exposure. Unlike mesothelioma, minimal exposure to asbestos will not be enough.
The claimant was diagnosed with lung cancer in 2002. He saw an advertisement in the Daily Mail placed by Corries solicitors in July 2009 and instructed them. A medical report was obtained from Dr Robin Rudd on 27 October 2009, and an engineer's report on 14 April 2010. The claim form was issued on 22 May 2012, and served on 9 September 2012. The claimant argued that his date of knowledge was the date he saw the advertisement. The judge had to consider the claimant's date of knowledge under s14 Limitation Act.
The issue was when the claimant knew that there was a real possibility his lung cancer had been caused by asbestos exposure; and his deemed date of constructive knowledge. Nichol J quoted Smith LJ in the case of Johnson v MoD:
"…the court asks whether a normal adult in the position and with the knowledge of the claimant would have sought expert advice about the cause or attributability of his condition. Put another way, considered objectively, should the claimant reasonably have been expected to seek expert advice?"
The claimant was initially given a poor prognosis. He said his interest was in that, rather than the cause of the disease. He discussed asbestos exposure with doctors but did not appreciate the link between the exposure and the cancer. He asked doctors later treating him for bowel cancer what the cause of the lung cancer was and they said they did not know. He had been a light smoker and did not attribute the disease to that.
The judge found the claimant did not have actual knowledge until he saw the advertisement. He added that while it was understandable that following diagnosis the claimant had other concerns, once the prognosis improved, he should have been on enquiry. He had plenty of opportunity to make enquiry. Had he done so, he was likely to have been told that asbestos exposure might have contributed to his lung cancer. Constructive knowledge was 2003, and the claim form issued 6 years late.
Nichol J then considered exercising discretion under Section 33 of the Limitation Act 1980.
The factors relevant to this claim were:
- The length of and reasons for delay on the part of the claimant: three years through lack of actual knowledge. There was unexplained delay from April 2010 to issue of claim form in May 2012.
- The extent to which the delay is likely to make the evidence less cogent: the claimant argued that there was delay from 1947/67 to 2006, but no further prejudice from delay thereafter. The claimant's three statements were contradictory as was his oral evidence.
- The extent to which the claimant acted promptly and reasonably once he knew his lung cancer might be attributable to the defendants: there was no delay in instructing solicitors once he had actual knowledge.
- The steps taken by the claimant to obtain medical, legal or other expert advice: the judge had no information about steps taken by the claimant to obtain legal advice, but he had obtained medical and engineering advice reasonably promptly.
The judge said he should take account of the totality of the delay from 1947-67 to May 2012. He also considered the merits of the claim. The contradictions in the claimant's evidence made it hard to establish that his exposure to asbestos was enough to be causative.
There was poor evidence of asbestos being handled at Tilbury. Most written records had been lost and what survived did not help the claimant in that it identified other London docks as the main handlers of asbestos. The shipping lines which used Tilbury did not service South Africa, the major contemporary source of asbestos.
The judge also noted the difficulties in apportionment due to the claimant's poor recollection, and that the case was modest and costs likely to be high. The judge said that the extension of time sought would cause defendant prejudice - especially against the background of the prejudice already caused by delay and that the claim was weak.
Points to note:
Constructive knowledge: the approach to constructive knowledge is that adopted in Johnson. Once the claimant appreciated that something was wrong, he ought to have been on enquiry. Had he done so, he would have been told of the link.
Note however, that this latter requirement was specifically rejected by the Supreme Court in Johnson. They did not want to burden a court with a speculative enquiry about what the claimant would have been told had he enquired. All that mattered was that he should have enquired, and did not.
Defendants will pay closer attention to when symptoms of disease became noticeable and query what steps the claimant took at to seek advice. If none, there is every chance that the court will apply a constructive knowledge test in the absence of a full investigation by the claimant of likely causes.
Section 33 prejudice: There was a 36-year delay between cessation of employment and the date the proceedings ought to have been issued.
The claimant argued that the further delay of six years had little effect on the cogency of the evidence available. The judge however, found that the approach to be taken was to view the delay as a whole. The fact that the case can have been little better in 2006 that it was six years later was irrelevant.
There is little a defendant can do to control the cogency of the evidence led on behalf of the claimant. The better claimant solicitors prepare statements which minimise contradiction. Once a claimant gives live evidence, contradictions can become apparent.
Note: the claimant has sought permission to appeal this case.