ASBESTOSIS: PERSONAL INJURY CLAIMS: LIMITATION [TIME BAR] PERIODS: LIMITATION CLAIMS: DISAPPLICATION OF LIMITATION PERIOD: LAW REFORM (MISCELLANEOUS PROVISIONS) ACT 1934: FATAL ACCIDENTS ACT 1976: s.33 LIMITATION ACT 1980
In the circumstances it was equitable to disapply the limitation period even though the deceased claimant’s action, against a former employer for damages for asbestos exposure, was almost eight years out of time.
Trial of a preliminary issue as to limitation in an action for damages for personal injury brought on behalf of the deceased claimant (R) against the defendant (T) under the Law Reform (Miscellaneous Provisions) Act 1934 and the Fatal Accidents Act 1976. R was employed by T from 1968 to 1991. His work brought him into contact with asbestos dust. He became ill and died in 1993.
At the date of his demise, R’s widow (J) knew that his death was from mesothelioma caused by exposure to asbestos during the course of his employment. She was also aware that R may have been exposed to asbestos whilst working for two other employers. In 1994, she sought advice from a solicitor (the 1994 solicitor) but was advised that it would be difficult to sue multiple employers. That advice, coupled with her psychological state, was enough to deter her from commencing proceedings.
Some years later, in 2002, J became aware that it was possible for the widows of men exposed to asbestos by a number of different employers to bring proceedings against one of those employers. Thereafter, J consulted her solicitors and proceedings were issued in August 2003 against T, alleging that T had failed to provide R with protection from asbestos dust. R’s claim was outside the limitation period so the issue was whether the court ought to disapply the limitation period under the Limitation Act 1980 s.33.
HELD: (1) The time limit for instituting proceedings expired in July 1996. Within that primary period, J had sought legal advice from the 1994 solicitor about a possible claim. However, that limitation could be disapplied if it were equitable to do so.
(2) In the instant case, there were several factors in favour of disapplying the limitation period. First, although the delay was substantial, even if the action had been commenced within the limitation period, it would nonetheless have involved investigating conduct that had occurred 20 to 30 years before. The delay was mainly due to the poor advice offered by the 1994 solicitor coupled with J’s own feelings at the time. Second, the effect of the delay on the cogency of evidence was negligible. A fair trial was still possible. Third, the claim was instituted promptly and reasonably once it was discovered that the conduct of T might be capable of giving rise to an action in damages.
(3) In sum, if the claim were not allowed to proceed, J would suffer considerable prejudice in a claim that otherwise appeared to be strong and of substantial value. If she were barred by limitation, it was not clear whether she would have any remedy against the 1994 solicitor. Accordingly, the court exercised its discretion and disapplied the limitation period.
ANDREW KENNETH CLACK (EXECUTOR OF THE ESTATE OF ANTHONY ROLFE, DECEASED) v THAMES TELEVISION LTD (2004)
QBD (Judge Hawkesworth) 25/5/2004