Collins v Secretary of State for Business Innovation And Skills & Anor

Constructive knowledge under section 14(3) of the Limitation Act 1980 is assessed objectively. A person with a serious injury will ordinarily be expected to seek appropriate advice about its possible causes. Attribution requires a real possibility, rather than certainty.

When exercising the section 33 discretion in a long-tail personal injury claim, the court may consider time elapsed between the alleged breach and the claimant’s date of knowledge. That historic delay forms part of all the circumstances, but carries less weight than the factors specified in section 33(3). Either party may rely on its effect upon the cogency of the evidence and the fairness of permitting the claim to proceed.

The claimant alleged that occupational exposure to asbestos between 1947 and 1967 caused lung cancer diagnosed in 2002. He acquired actual knowledge of the possible connection after seeing a solicitor’s advertisement in July 2009 and commenced personal injury proceedings in May 2012.

Nicol J held in [2013] EWHC 1117 (QB) that the claimant had constructive knowledge by mid-2003. The statutory period therefore expired in mid-2006. The judge declined to disapply the time limit under section 33 of the Limitation Act 1980 and dismissed the action.

The claimant appealed against both conclusions. The central issues were when a reasonable person would have investigated the possible cause of the cancer and how historic delay preceding the date of knowledge should be treated in the section 33 assessment.

1. Appeal dismissed. The claimant had constructive knowledge by mid-2003. The judge also exercised the section 33 discretion correctly.

2. Section 14(3) of the Limitation Act 1980 imposes an objective test. The court asks what inquiries a reasonable person who had suffered the claimant’s injury would have made. A reasonable person would ordinarily investigate the cause of a serious injury. The claimant’s personal failure to ask the obvious question until 2008 did not postpone constructive knowledge.

3. By mid-2003, a reasonable person in the claimant’s position would have asked the treating oncologist about the possible causes of the lung cancer. The oncologist’s records referred to the claimant’s work with asbestos. Had he been asked, the oncologist would probably have identified asbestos exposure as a possible cause, whether the question concerned the cause or possible causes. Since attribution under section 14(1)(b) requires only a real possibility, constructive knowledge was established.

4. For section 33, the time between an alleged breach and the commencement of the limitation period forms part of “all the circumstances of the case”. In a long-tail claim, however, historic effluxion of time carries less weight than the factors specifically identified in section 33(3)(a)–(f). Loss of cogency during the limitation period ordinarily carries greater weight than evidence lost before the limitation clock began.

5. Historic delay may assist either side. A claimant may contend that the evidence had already deteriorated before any actionable delay and that later delay caused little additional harm. A defendant may contend that existing difficulties made any further deterioration especially prejudicial. The court must assess where that consideration belongs in the overall balance.

6. The judge permissibly found that the claimant’s six-year post-limitation delay had made his evidence less cogent and prejudiced the defendants’ ability to investigate exposure, instruct experts and address apportionment. The low value of the claim and disproportionate costs were also relevant. Although describing the merits as “weak” was somewhat harsh, the claim was difficult and that difference did not undermine the evaluation.

7. Jackson LJ delivered the judgment. Lewison LJ and Macur LJ agreed. The trial judge’s refusal to disapply section 11 was affirmed.

1. Court of Appeal (Civil Division): The appeal was dismissed by [2014] EWCA Civ 717. The court affirmed the findings on constructive knowledge and the refusal to disapply the limitation period.
2. High Court, Queen’s Bench Division: Nicol J held in [2013] EWHC 1117 (QB) that the claimant had constructive knowledge by mid-2003. He declined to exercise the discretion under section 33 of the Limitation Act 1980 and dismissed the action as statute barred.