Nicholas v Ministry of Defence

The discretion under section 33 of the Limitation Act 1980 is fact-sensitive and must be exercised fairly, having regard to all the circumstances. The effect of delay on the defendant’s ability to defend the claim on its merits is of paramount importance. Absence of prejudice is not decisive, but ordinarily carries considerable weight. A claimant may obtain the benefit of section 33 even where the injured person chose not to sue during her lifetime, particularly where illness caused by the defendant’s tort contributed to that decision. In assessing damages for asbestosis, the fact that death resulted from an unrelated disease does not automatically restrict the award to a lower bracket. The extent of pain, suffering and loss of amenity remains the determining consideration.

The claimant, as executrix of the estate of Doris Timbrell, brought a personal injury claim against the Ministry of Defence for asbestos-related disease. The deceased had developed asbestosis after exposure to asbestos during wartime employment. She knew of the potential claim in August 2004 but did not commence proceedings, partly because her respiratory disability made her feel unable to undertake litigation. The limitation period expired in August 2007. Proceedings were issued in May 2012, after the deceased’s death from unrelated oesophageal cancer.

Liability and causation were admitted, and the defendant identified no evidential prejudice. The issues were whether the limitation period should be disapplied under section 33 of the Limitation Act 1980, and, if so, the appropriate awards for pain, suffering and loss of amenity and gratuitous care.

1. Limitation. The court exercised its discretion under section 33(1) of the Limitation Act 1980 and directed that the limitation provisions should not apply. The discretion required a fair and just assessment of the statutory factors and all other relevant circumstances.
2. The effect of delay on the defendant’s ability to resist the claim on the merits was of paramount importance. The absence of prejudice did not automatically determine the application, but was a factor of considerable weight. Here, liability and causation were admitted, a fair trial on quantum remained possible, and no prejudice affecting the cogency of the evidence had been shown.
3. The deceased’s failure to sue was assessed subjectively. Her increasing breathlessness and substantial respiratory disability explained why she felt unable to instruct solicitors, provide statements or undergo medical examinations. The defendant could not fairly rely on a limitation defence where its admitted tort had caused the condition contributing to the delay.
4. The claimant’s subsequent delay did not make it inequitable to permit the action to proceed. Solicitors had pursued the matter after notification of the claim, and there was no suggestion of negligent conduct giving rise to an alternative remedy against them.
5. Damages. The appropriate award for pain, suffering and loss of amenity was £40,000. The absence of asbestos-related shortening of life did not itself require use of a lower guideline bracket; the relevant question was the extent of the deceased’s symptoms, disability and loss of amenity.
6. For gratuitous care, the court applied a flexible assessment. There were no dogmatic rules governing quantification, and an aggregate hourly rate was appropriate. The award was £7,657, calculated by reference to reasonable hours and an adjusted Spine Point 8 rate. No award was made for miscellaneous expenses because there was insufficient evidence.

Not stated in the judgment.