Barrow v Cosignia Plc

A claimant cannot recast a distinct breach of duty occurring after an original accident as an aggravation of the injury caused by that accident. Each breach relied upon to establish liability constitutes a discrete cause of action, to which limitation provisions apply. The court may nevertheless extend the limitation period where, after balancing culpable delay against prejudice, it would be equitable to do so. The statutory factors are not exhaustive. An overlap between claims may justify an extension where excluding a material period would create a serious risk of an unfair trial or distort the parties’ ability to address causation.

Mr Barrow brought an action against his employer, formerly the Post Office, for injuries caused by a workplace collision. After liability for the accident had been determined, he sought to amend his pleading to allege that post-accident conduct had aggravated his psychiatric condition. Permission to amend was refused, but a second action was issued alleging that later negligent treatment caused or maintained a depressive disorder. The second action included allegations relating to a period outside the limitation period. The County Court allowed the amendment and exercised the discretion under section 33 of the Limitation Act 1980. Cosignia appealed, and Mr Barrow cross-appealed on limitation. The central issues were whether the proposed amendment introduced distinct causes of action and whether it was equitable to disapply the limitation period.

1. First action: Appeal allowed and the Deputy District Judge’s order restored. The proposed amendments alleged breaches of duty occurring after the accident. They therefore sought to introduce fresh causes of action, not merely particulars of injury or an aggravation of the original claim. The judge’s suggested principle that a defendant’s conduct could amount to the converse of mitigation was a chimera. If post-accident matters were relevant to causation, they could be pleaded in the ordinary way as part of the history relied upon to show that the accident caused or maintained the psychiatric condition.
2. Discrete causes of action: Where a claimant relies on a specific breach of duty to establish relief, in whole or in part, that breach is a discrete cause of action to which the limitation provisions apply. Difficult questions of causation may arise where injury follows a series of breaches, but that does not merge the causes of action.
3. Second action: The court considered the factors under section 33 of the Limitation Act 1980. There had been culpable delay because the material events were known when the first action was commenced and could then have been pleaded. The delay was unlikely to cause significant additional evidential prejudice because most facts had been investigated and recorded through the grievance procedure.
4. The factors in section 33(3) are not exclusive. The overlap between the consolidated actions was an additional, case-specific factor. Both actions required consideration of the contested period in deciding causation and the effect of later events on the claimant’s mental health. Applying the limitation period would leave a three-year evidential gap and risk an unfair and impractical trial, including the possibility that the defendant would rely on events in that period while the court could make no finding of breach against it.
5. It was therefore equitable under section 33 to disapply the three-year limitation period otherwise applicable under section 11. Lord Justice Brooke agreed. The appeal and cross-appeal were allowed. There was no order as to the costs of the appeal; the District Judge’s costs order was restored, Judge Marshall-Evans’s costs order was reversed, and the case was expedited.

• Court of Appeal (Civil Division): Allowed Cosignia’s appeal against the Liverpool County Court judgment of His Honour Judge Marshall-Evans QC dated 19 July 2002, restoring the Deputy District Judge’s refusal of permission to amend.
• Liverpool County Court: The judge had allowed the amendment and exercised the discretion under section 33 of the Limitation Act 1980 in relation to the second action.