Lloyd v Humphreys & Glasgow Ltd

A claimant who develops an actionable asbestos-related injury has one cause of action against each negligent employer for all consequences of that exposure. The claimant must claim both existing damage and the risk of later disease, either by seeking provisional damages or compensation for the risk. A later diagnosis of a more serious asbestos-related disease does not create a new cause of action or restart limitation.

Successive proceedings against different employers are not automatically an abuse of process. The question is whether, applying a broad merits-based approach, the later claim is oppressive or unjust. The limitation period may be excluded where the balance of the circumstances under Limitation Act 1980, section 33, favours allowing the claim to proceed.

Mr Lloyd had been exposed to asbestos during employment by several employers. He first brought a claim for asbestosis against two former employers, with a contribution from another employer. That claim was settled in 2011 on a full and final basis. Mr Lloyd was subsequently diagnosed with mesothelioma and died in 2012.

The claimant, his widow and dependant, brought a further claim against a different former employer which had not been sued or contributed to the earlier settlement. The issues were whether the second claim was an abuse of process and, if not, whether the limitation period should be excluded under section 33 of the Limitation Act 1980.

1. Abuse of process. The fact that a claimant could have sued several employers in one action does not make a later claim against a different employer abusive. The court must apply a broad merits-based approach and ask whether, in all the circumstances, the later claim involves unjust harassment or oppression. The defendant’s insurer had long known of the potential claim but had refused to engage while related insurance litigation was pending. The claimant’s conduct was neither oppressive nor harassing.
2. Single cause of action. Applying the single action rule discussed in Rothwell v Chemical & Insulating Co Limited [2007] UKHL 39, a claimant has one cause of action against each employer for all personal injury consequences of the relevant exposure. The claim must include existing damage and the risk of later disease, either through damages for that risk or provisional damages under section 32A of the Senior Courts Act 1981. Time does not restart when a later asbestos-related disease develops.
3. Accrual and knowledge. Asymptomatic pleural plaques and mere exposure do not constitute actionable injury. The cause of action arose when Mr Lloyd developed significant asbestosis. On the evidence, that was no earlier than 6 October 2008, which was also his date of knowledge for sections 11 and 14 of the Limitation Act 1980. The claim was therefore prima facie out of time.
4. Section 33 discretion. The court considered the length and reasons for delay, forensic prejudice, the defendant’s conduct, the claimant’s promptness after knowledge, and the medical and legal advice obtained. The defendant suffered no material forensic disadvantage from the post-2008 delay; much of the evidential difficulty resulted from the long latency of asbestos disease. The insurer’s decision to await the outcome of the Trigger litigation materially contributed to the position. The claim was arguable and a possible claim against the former solicitors was not a straightforward alternative remedy.
5. The court therefore declined to strike out the claim as an abuse of process and directed that the primary limitation period should be excluded under section 33. The claim was allowed to proceed.