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
