ON APPEAL FROM
LIVERPOOL COUNTY COURT
HIS HONOUR JUDGE GORE QC
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE TOMLINSON
LORD JUSTICE MCFARLANE
| SIR ROBERT LLOYD & CO LTD & ORS
|- and -
|MR BERNARD HOEY
Mr P N Hinchliffe QC (instructed by Thompsons) for the Respondent
Hearing dates : 16 August 2011
Crown Copyright ©
Lord Justice Jackson :
Part 1 Introduction
Part 2 The Facts
Part 3 The Present Proceedings
Part 4 The Law
Part 5 Decision
"(1) This section applies to any action for damages for negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or of provision made by or under a statute or independently of any contract or any such provision) where the damages claimed by the plaintiff for the negligence, nuisance or breach of duty consist of or include damages in respect of personal injuries to the plaintiff or any other person.
(3) An action to which this section applies shall not be brought after the expiration of the period applicable in accordance with subsection (4) or (5) below.
(4) Except where subsection (5) below applies, the period applicable is three years from –
(a) the date on which the cause of action accrued; or
(b) the date of knowledge (if later) of the person injured."
"(1) [Subject to subsection (1A) below] in sections 11 and 12 of this Act references to a person's date of knowledge are references to the date on which he first had knowledge of the following facts –
(a) that the injury in question was significant; and
(b) that the injury was attributable in whole or in part to the act or omission which is alleged to constitute negligence, nuisance or breach of duty; and
(c) the identity of the defendant; and
(d) if it is alleged that the act or mission was that of a person other than the defendant, the identity of that person and the additional facts supporting the bringing of an action against the defendant;
and knowledge that any acts or omissions did or did not, as a matter of law, involve negligence, nuisance or breach of duty is irrelevant.
(2) For the purposes of this section an injury is significant if the person whose date of knowledge is in question would reasonably have considered it sufficiently serious to justify his instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment."
"A CT scan in May of this year showed extensive calcified pleural plaque and some areas of coarse fibrosis. The areas of fibrosis are associated with pleural plaque. In addition there is some fibrosis in both costophrenic recesses, again associated with associated pleural disease. This may represent asbestosis or pleural-related fibrosis. There is also evidence of folded lung.
Mr Hoey also has COPD. His full lung studies reflect the co-existence of COPD and pulmonary fibrosis."
"Q. From what asbestos related condition(s) was Mr Hoey suffering in January 1986? Was he suffering from diffuse pleural thickening? If so, to what extent?
A. I believe that the symptoms in 1985/1986 were the first manifestations in the development of diffuse pleural thickening. This condition is often characterised by a number of episodes of pleuritic chest pain and/or pleural effusion. Dr Merrin reported that his chest x-ray did show what he thought was a right sided pleural effusion which had largely resolved on follow up leaving a minor degree of pleural thickening, with also some pleural thickening on the left side.
Q. To what extent could those conditions be described as "significant"?
A. I believe looking retrospectively, that this episode was significant in that it represented the initial stages of the development of diffuse pleural thickening but he was soon free of symptoms and any pleural thickening evident at that time would have been minor in degree and not causing any impairment of lung function
Dr Merrin raised the possibility of an asbestos causation on only one occasion in January 1986 and did not refer to it on subsequent clinic visits.
I think it likely that Dr Merrin was initially suspicious that Mr Hoey was suffering from a mesothelioma and this is why he discussed having a pleural biopsy and also why he followed him up with x-rays for 2 years.
Q. Mr Hoey says that his chest pain had gone by October 1985, and his breathlessness by January 1986. Does the medical evidence support this statement?
A. Yes. He was completely symptom free by January 1986 except for recurrent attacks of bronchitis.
Q. If the chest pain and breathlessness had gone, could they have been caused by diffuse pleural thickening?
A. Yes, looking retrospectively, these were the first manifestations of the process of developing diffuse pleural thickening. This process takes several years to fully develop."
(a) whether the claimant knew in 1984-1986 that he had an injury which was significant;
(b) whether the claimant knew in 1984-1986 that his injury was attributable to exposure to asbestos.
"I respectfully think that the notion of the test being partly objective and partly subjective is somewhat confusing. Section 14(2) is a test for what counts as a significant injury. The material to which that test applies is generally "subjective" in the sense that it is applied to what the claimant knows of his injury rather than the injury as it actually was. Even then, his knowledge may have to be supplemented with imputed "objective" knowledge under section 14(3). But the test itself is an entirely impersonal standard: not whether the claimant himself would have considered the injury sufficiently serious to justify proceedings but whether he would "reasonably" have done so. You ask what the claimant knew about the injury he had suffered, you add any knowledge about the injury which may be imputed to him under section 14(3) and you then ask whether a reasonable person with that knowledge would have considered the injury sufficiently serious to justify his instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment."
"(1) The knowledge required to satisfy section 14(1)(b) is a broad knowledge of the essence of the causally relevant act or omission to which the injury is attributable;
(2) "Attributable" in this context means "capable of being attributed to", in the sense of being a real possibility;
(3) A plaintiff has the requisite knowledge when she knows enough to make it reasonable for her to begin to investigate whether or not she has a case against the defendant. Another way of putting this is to say that she will have such knowledge if she so firmly believes that her condition is capable of being attributed to an act or omission which she can identify (in broad terms) that she goes to a solicitor to seek advice about making a claim for compensation;
(4) On the other hand she will not have the requisite knowledge if she thinks she knows the acts or omissions she should investigate but in fact is barking up the wrong tree: or if her knowledge of what the defendant did or did not do is so vague or general that she cannot fairly be expected to know what she should investigate; or if her state of mind is such that she thinks her condition is capable of being attributed to the act or omission alleged to constitute negligence, but she is not sure about this, and would need to check with an expert before she could be properly said to know that it was.
"I do not think the pleural thickening on the left side is significant but I am going to re-X-ray him in 3 months' time."
"I saw Mr Hoey again. He feels well, has no pain and says he is not breathless.
On examination there is diminished air entry at the right base. There are no added sounds in his chest. His x-ray looks much the same though possibly the right sided pleural shadowing is slightly less.
On further questioning this man tells me that he worked in Cammell Lairds for 3 years, working as a fitter's helper on polaris submarines. It is quite possible he was exposed to asbestos at that time and of course in his job in the building trade he could well have had asbestos exposure.
I discussed with him the possibility of this bilateral pleural shadowing being due to asbestos exposure and suggested admission to hospital for some further investigation. He is not very keen on this at present and I did not push the point. He is clinically well, but I have arranged to review him again in a month's time with repeat x-ray.
I think if the pleural shadowing on the right side persists that we ought to do pleural biopsy"
"I reviewed this patient again today. He says he feels well and his new x-ray shows some lessening of the right sided pleural shadowing. In view of this I do not feel further investigation is indicated at present and I have arranged to review him with x-ray in 2 months' time."
"This man is very well and tells me he has not lost any time off work since I last saw him. His general condition is good. There is nothing abnormal to find clinically in his chest. X-ray is satisfactory and shows no change in the pleural thickening which is mainly on the left side but also some on the right side.
In view of the lack and symptoms unchanged in x-ray I have not arranged to see him again routinely."
Lord Justice McFarlane:
Lord Justice Tomlinson: