Collins v Secretary of State for Business Innovation and Skills

For limitation purposes, constructive knowledge of attributability arises when a reasonable person in the claimant’s position would have sought expert advice about the possible cause of a significant injury. The court must allow reasonable thinking time, but age, prognosis and alternative possible causes do not necessarily make inquiry unreasonable. Under Limitation Act 1980, section 33 requires an overall equitable comparison of prejudice. The court may consider the total delay, including difficulties caused by historical events, where the claimant needs an extension. The listed factors in section 33(3) are not exhaustive. The claimant bears the burden of persuading the court to disapply the limitation bar.

The claimant alleged that lung cancer diagnosed in 2002 resulted from asbestos exposure while he worked as a dockworker between 1947 and 1967. He issued proceedings in May 2012 against the Secretary of State, said to be responsible for the National Dock Labour Board, and the successor to a stevedoring company. The defendants pleaded limitation, and limitation was ordered to be tried as a preliminary issue. The central questions were when the claimant had actual or constructive knowledge that his injury was attributable to asbestos exposure and, if time had expired, whether it was equitable to disapply the limitation period under section 33 of the Limitation Act 1980.

1. The limitation defence succeeded and the claim was dismissed. The claimant had no actual knowledge of the possible causal link until July 2009, when he saw an advertisement referring to asbestos and lung cancer.
2. Constructive knowledge arose by mid-2003. Applying the objective approach in Johnson v Ministry of Defence [2012] EWCA Civ 1505, a reasonable person in the claimant’s position would, after the initial shock of the diagnosis and the improvement following radiotherapy, have made inquiries about the possible causes of a significant illness. His age, previous smoking and the fact that doctors had not expressly identified asbestos did not make such inquiries unreasonable. The statutory proviso concerning facts ascertainable only with expert advice did not assist him because he had not shown that he had asked whether asbestos exposure might have been a possible cause.
3. Under section 33, the fundamental question was whether it was equitable to allow the action to proceed by balancing the claimant’s prejudice if barred against the defendants’ prejudice if the defence were removed. The factors in section 33(3) are non-exhaustive, and the claimant bears the burden of persuasion. The court could consider the totality of the defendants’ evidential difficulties, including the long interval between the alleged exposure and the proceedings, as well as later delay after constructive knowledge.
4. The claimant required an extension of about six years. Although he acted promptly after actual knowledge and the time taken to obtain medical and engineering reports was reasonable, the unexplained later delay, lost records, deceased witnesses, changed evidence, contribution difficulties, the modest value of the claim and its significant weaknesses made the balance of prejudice adverse to him. The power under section 33 was therefore refused.