Balls v Reeve & Anor

For limitation purposes, a claimant is not fixed with knowledge of a significant asbestos-related injury merely because respiratory symptoms or signs of asbestos exposure were previously present. The relevant question is whether the claimant knew, or ought reasonably to have known, of a significant injury attributable to the alleged breach. Where expert evidence is necessary to identify the actionable disease, reasonable steps to obtain that advice may prevent constructive knowledge arising earlier. Alternatively, the court may disapply the limitation period under section 33 of the Limitation Act 1980 where it is equitable to do so and the defendant suffers no serious forensic prejudice. In an asbestosis claim, medical and factual evidence may establish causation without occupational-hygienist evidence where the diagnosis is unchallenged and the defendant was the sole asbestos exposer.

Mr Edward Balls claimed damages from the personal representatives of his former employer’s estate for asbestosis caused by asbestos exposure during construction work between 1979 and 1984. The defendants contended that the claim, issued on 28 October 2019, was statute-barred under the Limitation Act 1980. The central issues were when Mr Balls acquired actual or constructive knowledge of a significant injury attributable to the alleged breach, whether the limitation period should be disapplied under section 33, and whether breach and causation were proved.

1. Limitation. Mr Balls did not have actual knowledge of a significant injury attributable to asbestos exposure during the relevant employment period until his asbestosis was diagnosed in August 2017. Earlier respiratory problems, an earlier reference to asbestos exposure, and imaging suggestive of pulmonary fibrosis did not establish knowledge of asbestosis.
2. Mr Balls was not fixed with constructive knowledge. The distinction between signs of asbestos exposure and the development of asbestosis was material. The earlier imaging did not show that asbestosis had developed, and the hospital and general practitioner had not pursued the issue. The claim was therefore brought within time under sections 11 and 14 of the Limitation Act 1980.
3. Section 33 alternative. If the limitation conclusion were wrong, it would nevertheless be equitable to allow the claim to proceed. The court considered all the statutory factors and found no serious prejudice to the defendants. The evidence about the general nature of the building work and Mr Balls’ work pattern would probably have been substantially the same even if proceedings had been commenced earlier.
4. Breach and causation. Mr Balls regularly worked with asbestos between 1979 and 1984, above minimal exposure levels, without protective precautions. His evidence and Professor Maskell’s medical evidence established causation on the balance of probabilities. Occupational-hygienist evidence was unnecessary in the circumstances because the diagnosis of asbestosis was unchallenged, Mr Balls had no other occupational asbestos exposure, and the medical evidence was consistent with the Helsinki Criteria.
5. Judgment was entered for Mr Balls. No further findings on apportionment or quantum were required because those issues were capable of agreement.