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Asbestos, date of knowledge, limitations
ASBESTOS : DATE OF KNOWLEDGE : LIMITATIONS : PERSONAL INJURY CLAIM :
PLEURAL THICKENING CAUSED BY EXPOSURE TO ASBESTOS : DATE OF CLAIMANT'S
KNOWLEDGE OF SIGNIFICANT INJURY : s.14(1) LIMITATION ACT 1980 : s.14(2)
LIMITATION ACT 1980 : s.14(1)(b) LIMITATION ACT 1980
The claimant did not know that he had suffered a significant personal
injury until 2008 and accordingly had commenced his action within three
years of his date of knowledge.
The appellant employers (E) appealed against a decision on a preliminary
issue that the personal injury claim of the respondent (H) was not
statute-barred. H was a 79-year-old man who had been exposed to asbestos
in the course of his employment with E. His pleaded injury, based on a
2008 diagnosis, was "bilateral diffuse pleural thickening and a large
area of folded lung". He had first developed chest pains in 1984 or 1985
and was referred by his GP to a hospital chest clinic. A number of
chest X-rays were taken in the course of eliminating various suspected
diagnoses, such as mesothelioma. Pleural thickening was noted on certain
X-rays during the period 1985 to 1987. However, that was not suspected
as a cause of the chest pain. His condition improved and in September
1987 he was discharged from the chest clinic. He continued to work until
he was aged 60. In 1992 he was having difficulty breathing and retired
on the grounds of ill health. Over the years that followed his breathing
difficulties increased. In August 2007 he was again referred to the
hospital. The expert evidence was that the pleural thickening, although
less advanced, would have caused the chest pain in the mid-1980s. The
judge held that H did not know until 2008 that he had a significant
injury. The judge therefore held as a preliminary issue that H's
proceedings were not statute-barred, having been commenced within three
years of his date of knowledge within the Limitation Act 1980 s.14(1).
HELD: The judge was not constrained by the evidence to hold that H's
date of knowledge under s.14 occurred during the mid-1980s. On the
contrary, he was right to find that what he suffered during that period
was a transient bout of chest pain. H did not know that he had suffered a
significant injury within s.14(2) until 2008. Accordingly, he commenced
his action within three years of his date of knowledge, A v Hoare
(2008) UKHL 6, (2008) 1 AC 844 followed. Therefore, the question of
knowledge of attributability under s.14(1)(b) did not arise. However, on
the evidence H could not be fixed with knowledge in the 1980s that his
injury, namely pleural thickening, had been caused by exposure to
asbestos, Spargo v North Essex DHA (1997) PIQR P235 CA (Civ Div)
considered. The only relevant knowledge which H then had was that, if he
had developed mesothelioma, which he had not, then that condition would
be attributable to exposure to asbestos (see paras 45-47 of judgment).
“Lawtel” 12.9.2011
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