England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
LIVERPOOL COUNTY COURT
HIS HONOUR JUDGE GORE QC
OLV25697

		Royal Courts of Justice Strand, London, WC2A 2LL
		09/09/2011

Lord Justice Jackson :

1. This judgment is in five parts, namely:

Part 1 Introduction

Part 2 The Facts

Part 3 The Present Proceedings

Part 4 The Law

Part 5 Decision

PART 1. INTRODUCTION
2. This is an appeal by employers in an Employers Liability Disease case against a finding that the claim is not statute barred. The issue is whether the judge erred in law in holding that the claimant commenced proceedings within three years of the date of knowledge under s. 11 (4) (b) of the Limitation Act 1980.
3. In this judgment I shall refer to the Limitation Act 1980 as "the 1980 Act".
4. Section 11 of the 1980 Act provides:

"(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."

5. Section 14 of the 1980 Act provides:

"(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."

6. Having set out the relevant statutory provisions, I must now turn to the facts.
PART 2. THE FACTS
7. The claimant is a 79 year old man, who has lived in Birkenhead for all of his adult life. He was employed by the five defendant companies in various capacities between 1947 and 1992. In the course of those employments he was exposed on many occasions to asbestos.
8. The claimant now suffers from calcified pleural plaque and bilateral, partly calcified diffuse pleural thickening, worse on the right than the left. In addition he suffers from other lung diseases, including longstanding chronic asthma and smoking induced chronic obstructive pulmonary disease. His respiratory symptoms may therefore be multi-factorial in origin. He also suffers from ischaemic heart disease having had a myocardial infarction in 2004, and a subsequent angiography has demonstrated coronary arterial disease. He has also suffered from a variety of other conditions and indeed is and has for some time been clinically obese. His global cardiorespiratory disablement is now 90 per cent and, at least for the purposes of this litigation, that is subdivided as being 70 per cent respiratory, 10 per cent due to ischaemic heart disease and 10 per cent due to obesity. The respiratory component of 70 per cent is divided as to 50 per cent attributable to chronic obstructive pulmonary disease and asthma and 20 per cent being attributed to asbestos related pleural thickening.
9. The claimant first developed chest pains in 1984 or 1985 and went to see his GP, Dr Jones. Dr Jones in due course referred the claimant to the chest clinic at Arrowe Park Hospital in Wirral, where the claimant came under the care of Dr Merrin. Medical records show that between 1984 and 1987 a number of possible causes were considered and eliminated. These included hiatus hernia, pneumonia, cardiac problems and mesothelioma. A number of chest X-rays were taken in the course of eliminating the various suspected diagnoses.
10. Pleural thickening was noted on certain X-rays during the period 1985 to 1987. However, this was not suspected as being a cause of the chest pain.
11. After September 1985 the claimant's condition generally improved. In September 1987 the claimant was discharged from the chest clinic.
12. The claimant continued to work until he was aged 60. In 1992 the claimant was having difficulty breathing and he retired on the grounds of ill health. Over the years that followed the claimant's breathing difficulties increased.
13. In August 2007 the claimant was referred once more to Arrowe Park Hospital. He was seen by Dr Stevenson in the respiratory clinic, who arranged for a chest X-ray, CT scan and MRI scan. Dr Stevenson's diagnosis, as subsequently set out in her letter dated 17^th December 2008, was as follows:

"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."

14. Dr Stevenson also advised the claimant that he could make a claim in respect of his disability. She advised him to get in touch with the Merseyside Asbestos Victims Support Group. The claimant heeded that advice and in due course instructed solicitors, Messrs Thompsons.
15. Thompsons obtained medical reports from another consultant physician, Dr D.S. Lawrence. Dr Lawrence diagnosed the claimant as suffering from the various conditions set out in paragraph 8 of this judgment. He advised that the calcified pleural plaques and the pleural thickening may have been caused by exposure to asbestos. He added that this condition (although less advanced) would have caused the claimant's chest pain in the mid 1980's.
16. Armed with this professional advice, the claimant commenced the present proceedings.
PART 3. THE PRESENT PROCEEDINGS
17. By a claim form issued in Liverpool County Court on 13^th August 2010 the claimant claimed damages for personal injury against the first to fifth defendants, as his former employers. In the accompanying particulars of claim, the claimant alleged that the defendants had acted negligently and in breach of their statutory duty by exposing him to asbestos during the course of his various employments. The claimant's pleaded injury was "bilateral diffuse pleural thickening and a large area of folded lung"
18. The defendants served defences denying liability and asserting that the claimant's claim was statute barred. The district judge directed that limitation be tried as a preliminary issue.
19. The claimant provided five witness statements in support of his claim. Unfortunately he was not well enough to attend court. He therefore gave his oral evidence by deposition pursuant to CPR rule 34.8. He gave this evidence at his home on 6^th April 2011, with all counsel in attendance.
20. The trial of the limitation issue took place in the Liverpool County Court on 18^th April 2011, before H. H. Judge Gore QC. In preparation for the trial, the judge not only read a transcript of the claimant's oral evidence, but also watched a DVD of the claimant giving that evidence. He assessed the claimant as an honest and careful witness, who was doing his best to recall the events about which he was questioned.
21. Dr Lawrence did not give oral evidence at the trial. Instead, very sensibly, Dr Lawrence provided written answers to counsel's questions in a supplemental report. The crucial questions and answers read as follows:

"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."

22. The judge reached the following conclusions. The claimant's claim was for disabling pleural thickening, the first symptoms of which became manifest in 1985 or 1986. Accordingly the claimant's cause of action accrued in 1985 or 1986. Therefore the primary limitation period under s. 11 (4) (a) of the 1980 Act expired by 1989. However, the claimant did not know in 1985 or 1986 that he had an injury which was significant. He did not learn this until Dr Stevenson advised him of the outcome of her investigations in 2008. Therefore the proceedings had been commenced within three years of the "date of knowledge" as defined in s. 14 (1) of the 1980 Act. In the result the judge gave judgment for the claimant on the limitation issue. He then gave directions for an early trial in respect of the outstanding liability and quantum issues.
23. In an obiter passage the judge added that, if he had found for the defendants on the "date of knowledge" issue, he would not have exercised his discretion under s. 33 of the 1980 Act to disapply the provisions of sections 11 and 14.
24. The Defendants are aggrieved by the judge's rejection of their limitation defence. Accordingly they appeal to the Court of Appeal.
25. The defendants contend that on the evidence before the judge, he was obliged to conclude that the "date of knowledge" occurred in the period 1984-1986. In support of this contention, Mr Andrew McLaughlin for the defendants, has taken us through the crucial passages in the claimant's evidence and in the medical records. He is critical of the judge's reasoning at paragraphs 65 to 80 of the judgment and submits that the judge there elided two separate questions. Those two questions are;

(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.

26. Mr P. N. Hinchliffe QC for the claimant submits that the judge's conclusion on the date of knowledge issue was correct. He accepts, however, that the judge's formulation of his reasons is not entirely satisfactory.
27. Before grappling with the issues on this appeal, I must first review the law.
PART 4. THE LAW
28. The date of knowledge which starts the limitation clock ticking is, essentially, the date on which the claimant knows that his injury (a) is significant and (b) is attributable to the allegedly negligent act or omission.
29. The test for what constitutes a "significant" injury is set out in s. 14(2) of the 1980 Act. Lord Hoffmann explained the operation of that test in A v Hoare [2008] UKHL 6, [2008] 1 AC 844 at [34] as follows:

"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."

30. That exposition is helpful. I shall proceed on the basis of the plain words of s.14 (2), as elucidated by Lord Hoffmann in that passage, without a lengthy recitation of the other judicial glosses on the section.
31. In relation to knowledge that the injury was "attributable" to the allegedly negligent conduct, the guidance given by this court in Spargo v North Essex District Health Authority [1997] 1 PIQR P235 is helpful. Brooke LJ (with whom Waller and Nourse LJJ agreed) derived the following principles from the authorities:

"(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.

32. Again, I have no intention of re-inventing the wheel or inflicting some new paraphrase upon the profession. I shall proceed on the basis of the clear words of s. 14 (1) (b), as elucidated by Brooke LJ in the above passage.
33. With the benefit of that guidance, I must now turn to the issues in the present appeal.
PART 5. DECISION
34. It is first necessary to examine the claimant's medical records during the crucial period 1984-1986. These reveal that the claimant consulted Dr Jones on 27^th February 1984 in respect of pain on the left side of his chest since that morning. A chest X-ray was obtained on 29^th February. This revealed pleural thickening. However, the claimant did not see the X-ray report and he did not consult his doctor again about chest problems for the next one and a half years.
35. In July 1985 the claimant returned to Dr Jones complaining of chest pains. Further X-rays were taken and the claimant was referred to the chest clinic. Over the next few months a number of possible causes of the chest pain are considered and, after investigation, eliminated. Pleural shadowing was noted on the X-rays, but no-one suggested to the claimant that pleural shadowing or pleural thickening was the cause of his pain. Nor did anyone suggest that pleural shadowing or pleural thickening was a matter about which the claimant should either be concerned or seek treatment.
36. Fortunately, the chest pains ceased in September 1985. On 3^rd October 1985 Dr Merrin commented in a letter to Dr Jones:

"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."

37. Further X-rays were obtained in January 1986. On 23^rd January the claimant attended a consultation with Dr Merrin. Following that consultation, Dr Merrin sent the following letter (which accords precisely with Dr Merrin's handwritten consultation note) to Dr Jones:

"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"

38. It is clear from Dr Merrin's letter and the surrounding evidence that the concern at this time was that the claimant may have mesothelioma as a result of contact with asbestos. In the event no further investigation was done and it became clear that the claimant did not have mesothelioma.
39. On 27^th February 2006 Dr Merrin wrote to Dr Jones as follows:

"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."

40. The claimant continued to feel well. He continued to work. On 17^th September 1986 he had his final consultation with Dr Merrin and was discharged. Dr Merrin's final letter to Dr Jones, following that consultation, reads as follows:

"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."


41. The claimant's evidence, which the judge accepted, was to the following effect. He did not generally see his X-ray reports. He was not told that there was anything to worry about during 1984 and 1985 and he was not told that he might have been affected by asbestos. Dr Merrin mentioned the possibility of mesothelioma caused by asbestos in January 1986, but he was not required to undergo further investigation and the matter was not mentioned again.
42. The picture which emerges therefore is as follows. In February 1984 and July to September 1985 the claimant suffered chest pains, but was unaware that these were symptomatic of any underlying injury. There was no failure by the claimant to seek professional help and so no additional knowledge can be attributed to the claimant under s. 14 (3) of the 1980 Act. During that period the symptoms of which the claimant was aware would not cause a reasonable person to issue proceedings for damages against a known and solvent culprit.
43. In January 1986 the claimant had been pain free for four months, but was advised of the possibility that he had developed mesothelioma as a result of encountering asbestos in his work. The claimant had not in fact developed mesothelioma and that scare soon passed. Pleural thickening and pleural shadowing had been revealed on various X-rays, but the claimant was not told about these matters and the doctors believed (wrongly as it now turns out) that these did not constitute a significant injury. Accordingly, during 1986 the claimant was unaware of any internal injury or disability which might cause a reasonable person to issue proceedings. Again, there was no failure by the claimant to obtain professional advice and no additional knowledge should be imputed to him under s. 14(3).
44. The various doctors who during the 1980's considered that the claimant's pleural thickening was not a problem can hardly be criticised. This condition is usually benign and not a cause of significant problems. Nor is it necessarily caused by asbestos. See Rothwell v Chemical and Insulating Co Ltd [2006] EWCA Civ 27 at [13]; [2006] 4 All ER 1161.
45. Let me now draw the threads together. I reject the submission that the judge was constrained by the evidence to hold that the claimant's "date of knowledge" under s. 14 of the 1980 Act occurred during the mid-1980s. On the contrary, I agree with the judge's assessment that what the claimant suffered during this period was "a transient bout of chest pain". The claimant did not know that he had suffered a "significant injury" until 2008. Accordingly he commenced the present action within three years of his date of knowledge.
46. In those circumstances, the question of knowledge of attributability does not arise. I should add, however, this. Applying the provisions of s. 14 (1) (b), as elucidated in Spargo, to the evidence in this case, I do not see how the claimant could be fixed with knowledge in the 1980s that his injury (namely pleural thickening) had been caused by exposure to asbestos. On the basis of the claimant's evidence, in particular his cross-examination, the only relevant knowledge which the claimant had was this: if he had developed mesothelioma (which he had not), then that condition would be attributable to exposure to asbestos.
47. In the result, therefore, I have reached precisely the same conclusion as the judge on the limitation issue. Accordingly, as the court indicated at the end of the hearing on 16^th August, this appeal must be dismissed.

Lord Justice McFarlane:

48. I agree.

Lord Justice Tomlinson:

49. I also agree.