Preston v BBH solicitors

For limitation purposes, knowledge of a non-actionable condition does not amount to knowledge of a significant injury. Pleural plaques were not actionable, and a mere possibility of asbestosis was insufficient. Where diagnosis requires expert advice, section 14(3) does not impute knowledge while the claimant takes reasonable steps to obtain and act on that advice. The date-of-knowledge inquiry also requires consideration of whether a reasonable person would regard the known injury as sufficiently serious to justify proceedings. Applying Rothwell v Chemical and Insulating Company Ltd [2007] UKHL 9, Spargo v North Essex District Health Authority [1997] PIQR 235 and A v Hoare [2008] UKHL 6, the court held that time did not begin to run until the claimant knew of his asbestosis.

Mr Preston had been exposed to asbestos during his employment. In February 2002, medical investigations identified pleural plaques and raised only the possibility of asbestosis. A definitive diagnosis of asbestosis followed a CT scan in November 2005.

Mr Preston’s personal injury claim against his former employers was issued on 16 November 2005, later discontinued, and resulted in an agreed costs order. He then claimed that BBH Solicitors had negligently failed to issue the claim before the primary limitation period expired.

The Recorder dismissed the professional negligence claim, holding that the relevant knowledge was acquired only in December 2005. The appeal concerned whether knowledge of pleural plaques, or of a possible asbestos-related disease, constituted the requisite knowledge under sections 11 and 14 of the Limitation Act 1980.

Appeal dismissed. Ward LJ gave the lead judgment. Etherton LJ and Pitchford LJ agreed.

1. The claim turned on the date of knowledge under sections 11 and 14 of the Limitation Act 1980. The relevant injury was an actionable significant injury. In light of Rothwell v Chemical and Insulating Company Ltd [2007] UKHL 9, pleural plaques were not actionable in themselves. The possibility that asbestosis might develop did not create a cause of action or start limitation time.
2. The medical evidence supported the Recorder’s conclusion that asbestosis was first diagnosed in November or December 2005. The general practitioner could identify only a possibility of asbestosis. Even Dr Marshall’s July 2005 assessment was provisional, and the CT scan was needed for confirmation.
3. Section 14(3) did not impute knowledge of asbestosis. The fact was ascertainable only with expert advice, and Mr Preston had taken reasonable steps to obtain that advice. The aggregation argument based on section 32A of the Supreme Court Act 1981 did not assist him. Rothwell explained that future risks may be included once a cause of action exists, but cannot establish the cause of action itself.
4. Under the principles stated in Spargo v North Essex District Health Authority [1997] PIQR 235, knowledge is insufficient where the claimant remains uncertain and must obtain expert confirmation. The seriousness inquiry stated in A v Hoare [2008] UKHL 6 also led to the conclusion that a reasonable person with the February 2002 knowledge would not have considered the injury sufficiently serious to justify proceedings.

Mr Preston acquired the relevant knowledge only in December 2005. His claim against BBH was therefore not established as negligent on the pleaded limitation basis. The Recorder’s order dismissing the claim with costs was upheld.

1. Court of Appeal (Civil Division): The appeal was dismissed. Ward LJ gave the lead judgment, with Etherton LJ and Pitchford LJ agreeing.
2. Middlesbrough County Court: Mr Recorder Lodge QC dismissed Mr Preston’s professional negligence claim with costs after the hearing on 19 November 2010.