Parsons v Warren & Anor

For limitation purposes, knowledge that an illness is attributable to an employer’s act or omission does not require knowledge of its precise medical cause. In an occupational disease case, knowledge that the illness was caused by contaminated or inadequately ventilated workplace air may suffice, provided it identifies the essential causally relevant act or omission. A bare attribution to “working conditions” may be insufficient where it does not identify what those conditions involved. The court must apply the statutory language to the facts and avoid judicial glosses that obscure it. The discretion to extend time under Limitation Act 1980, section 33, involves consideration of prejudice, delay, evidential cogency and the parties’ conduct. An appellate court should not interfere unless the discretion was exercised on an erroneous basis.

The claimant brought an industrial disease claim against his former employers, alleging that asthma had been caused by exposure to oil mist and dust during underground mine work. The claim was issued on 20 March 2000. On a preliminary issue, His Honour Judge Gaskell held that the claim was brought within the period prescribed by sections 11(4) and 14 of the Limitation Act 1980. He also held that, if necessary, he would exercise the discretion under section 33 to allow the claim to proceed. The employers appealed, challenging both conclusions. The central issues were when the claimant acquired the statutory knowledge required by section 14(1)(b), and whether the section 33 discretion had been properly exercised.

The appeal was dismissed unanimously, with costs subject to detailed assessment.

1. Date of knowledge. Under section 14(1)(b) of the Limitation Act 1980, the relevant knowledge is knowledge that the injury was attributable in whole or in part to the act or omission alleged to constitute negligence, breach of duty or other neglect. It is not necessary for the claimant to know the precise contaminant or exact medical aetiology.
2. On the facts, the claimant knew by 1992 that his asthma was attributable at least in part to foul, contaminated and inadequately ventilated air at work, or to a system of work which generated contaminants. That was sufficient knowledge for section 14(1)(b). The primary three-year limitation period had therefore expired before proceedings were issued.
3. The court cautioned against treating an attribution to “working conditions” as automatically identifying the relevant act or omission. The words of the statute must be applied to the circumstances of each case. The passage in Dobbie v Medway Health Authority [1994] 1 WLR 1234 could not be read as supporting the appellants’ broad submission in an occupational exposure case.
4. Section 33 discretion. The judge had properly considered the prejudice to both sides, the delay, the likely effect of delay on the cogency of the evidence, the claimant’s conduct and the defendants’ conduct. His conclusion that it was equitable to disapply the primary limitation period disclosed no error of principle, immaterial consideration or relevant failure to take account of a material matter. The Court of Appeal would not interfere with that discretionary assessment.

• Court of Appeal (Civil Division): dismissed the employers’ appeal from the preliminary-issue judgment of His Honour Judge Gaskell dated 18 September 2001.
• Cardiff County Court: held that the claim was within time under sections 11(4) and 14 of the Limitation Act 1980, and alternatively that the primary limitation period should be overridden under section 33.