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Court of Appeal Decision to Impact Limitation Periods in Industrial Disease Claims

Tuesday, 26 August 2014

The issue of limitation periods – the period of time within which a party to a legal action must bring a claim – has been recently addressed in the case of Collins v Secretary of State for Business Innovation and Skills [2014].

Mr Collins, the claimant, worked as a dock-worker between 1947 and 1967 during which time he was exposed to asbestos. He was diagnosed with lung cancer in 2002 but only got in touch with solicitors in 2009.

At first instance the claim was held to be time barred under the Limitation Act 1980. The Court of Appeal was asked to consider whether the lower court had correctly concluded the issue of the timing of the Claimant’s constructive knowledge and whether the court had erred in exercising its discretion by not extending the limitation period.

Personal Injury Limitation Periods

Importantly, under the Limitation Act 1980, the limitation period for personal injury cases is three years from the date on which the cause of action accrued or, if later, the date on which the claimant has “knowledge” of the injury.

Section 14(1) of the Limitation Act defines the date of “knowledge” as the date on which the claimant knows:

i) that the injury is significant,

ii) that the injury was attributable to the act/omission complained of, and

iii) the identity of the defendant. Under s14(3) of the Act, the claimant can be fixed with having constructive knowledge of the injury: knowledge s/he would reasonably have been expected to possess.

Limitation in Collins v Secretary of State for Business Innovation and Skills [2014]

As noted above, the two questions for the Court of Appeal in Collins were: first, the date on which the claimant had constructive knowledge; and, second, whether the judge ought to have extended the limitation period under s33 of the Limitation Act 1980.

Lord Justice Jackson ruled that, as a reasonable person the claimant ought to have asked about the possible causes of his lung cancer by 2003, thus Mr Collins’ eventual claim in 2012 fell outside the relevant limitation period.

In the Court of Appeal’s reasoning it suggested that the judge at first instance was right in taking into account the lengthy passage of time between Mr Collins’ dock-working and 2003, when he was fixed with constructive knowledge, and held the period to be part of the “circumstances of the case” for the purposes of s33 of the Limitation Act.

However, while both parties may rely on this factor, with the defendant arguing that the claimant’s delay exacerbated already serious difficulties in defending the action and the claimant arguing that delay did not affect the cogency of evidence given the time already elapsed, the court will accord “less weight” to this factor when deciding whether to disapply s11 of the Limitation Act and extend the limitation period.

The decision at first instance was therefore upheld.

Comment

The issue of claims being statute barred for a failure to be lodged within the relevant limitation period has always been a case of balancing the interest of the claimant’s right to a remedy against the defendant’s right to not be prejudiced by the passage of time.

In this respect, the decision in Collins will assist defendants by allowing the court to consider all circumstances – including now the period of time which elapses between the defendant’s breach of duty and the commencement of the limitation period – when exercising its discretion under s33 of the Limitation Act 1980.

For specialist litigation advice contact Peter Gourri today by email PGourri@rollingsons.co.uk or telephone 0207 611 4848.

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