PI Brief Update

Limitation: Did Curiosity Kill the Cat? - Luke Andrew Menary, Barrister, Liverpool Civil Law

03/10/10. Considering the impact of Collins v The Secretary of State for Business Innovation and Skills [2014]¹

While working at London Docks between 1947 and 1967, the claimant assisted in unloading cargoes of asbestos. In early 2002 he became unwell, and shortly thereafter was diagnosed as suffering from inoperable lung cancer. He consulted with his doctor on numerous further occasions, happily made a good recovery, and was discharged fully in 2008.

An advertisement in the Daily Mail, relating to various industrial diseases, prompted the claimant to instruct a solicitor in 2009. His claim was issued in the High Court in 2012.

The Court of Appeal, upholding the decision of the High Court, found that whilst the claimant did not have actual knowledge of the possible link between the lung cancer and his exposure to asbestos, he should have asked his doctor as to the cause of his cancer by around mid-2003. Had he asked, it would be inconceivable that his doctor would not have mentioned asbestos exposure as a possible cause. The claimant was therefore deemed to have constructive knowledge of the link by mid-2003, which meant the three-year limitation period expired in mid-2006. His claim was therefore time-barred, and the Court refused to extend time under section 33 of the Limitation Act 1980.

Discussion

The limitation period for personal injury claims is three years from either the date on which the cause of action accrued, or the date of knowledge (if later) of the person injured² . Amongst other things, the claimant must have knowledge of the fact his injury was attributable to the defendant’s act or omission. In deciding whether the claimant knew, the court applies an objective test and will credit him with any information that he might reasonably have been expected to obtain with the help of expert advice³ . This knowledge is referred to as ‘constructive knowledge’.

Collins is the latest in a line of cases which consider the issue of constructive knowledge where the claimant consulted with his General Practitioner but failed to ask what might possibly have caused his ‘disease’.

Back in 2004, the House of Lords considered the case of Adams v Bracknell Forest BC [2004]⁴ , which concerned a claim brought against the Council for failing to address the claimant’s dyslexia. Lord Hoffmann espoused the position on constructive knowledge as he saw it, stating:

“…there is no reason why the normal expectation that a person suffering from a significant injury will be curious about its origins should not also apply to dyslexics. In the absence of such an expectation, there is no reason why the limitation period should not be prevented from running for an indefinite period until some contrary impulse leads to the discovery which brings it to an end.”

Lord Justice Dyson, delivering his speech in Whiston v London Strategic Health Authority [2010]⁵ , doffed his judicial cap to Lord Hoffman’s approach when he stated:

“.…in deciding whether in all the circumstances of the case, the claimant should reasonably have made appropriate inquiries, the court should bear in mind that the House of Lords has “tightened up” the requirements of constructive knowledge… the decision in the Adams case requires the court to expect a heightened degree of curiosity of the reasonable claimant…”

Dame Janet Smith reiterated this ‘tightened up’ interpretation of constructive knowledge in Johnson v Ministry of Defence [2012]⁶ . At paragraph 28 she concluded that a reasonable man in the 21^st century would be curious about the onset of deafness at the relatively early age of 61, and would wish to find out what was causing it. She further found that if the GP had been consulted as to the cause of the deafness, he would have asked about the claimant’s employment history and the possibility of noise deafness would have come to light, and therefore the claimant was deemed to have constructive knowledge from the date on which he ought to have taken expert advice.

As can be seen, the decision in Collins has not radically altered the law relating to constructive knowledge; it has merely affirmed the court’s expectation that claimants should be curious as to the cause of their symptoms. It is a reminder of the difficult task which claimants face when bringing claims years after suffering hearing loss or a disease.

Of course in relation to noise-induced hearing loss claims, many claimants will have visited their doctor in the past with concerns that their hearing is failing. Similarly, in mesothelioma and asbestosis claims they will have attended many appointments at hospitals and doctors’ surgeries. It will be a rarity where this is not the case. Claimants are therefore likely be fixed with constructive knowledge, and the three-year limitation period will run, from the date of the first consultation at which they raised the issue (or shortly thereafter to account for ‘thinking time’).

This was certainly the approach taken by the Court of Appeal in Johnson. The claimant in that case realised he had a hearing problem in 2001, and was aware that exposure to noise could cause hearing loss. However, he only consulted a doctor in 2006, and only asked whether he had wax in his ears, to which the doctor responded that he did not, and attributed his hearing difficulties to his age (60’s). The Court of Appeal held that the claimant should have asked his GP the more open question of ‘what the cause might be’ in 2002, rather than specifically about wax, as this would have prompted the doctor to reveal that it was possibly work-related.

In Collins, the Court of Appeal similarly held that the correct question to ask the GP was about ‘causes or possible causes’.

Following this line of authority, courts expect claimants to have actively questioned their doctors about the cause(s) of their symptoms. Presenting at a surgery with a complaint, but failing to ask the open question ‘what might the cause be?’ is not good enough.

The importance of determining the date of a claimant’s constructive knowledge cannot be overstated. Depending upon which date it is fixed, it can remove limitation as an issue altogether, or it can count in a claimant’s favour when a court is considering the application of section 33 of the Limitation Act 1980. Courts are to explicitly have regard to the length of, and reasons for, the delay⁷ , and the extent to which the claimant acted promptly and reasonably once he knew he might have a claim for damages⁸ . Lord Justice Fulford recently reiterated that the ‘delay’ referred to in section 33 includes not only the delay from the end of the limitation period, but also the delay from the claimant’s knowledge (actual or constructive)⁹ .

Claimants and their solicitors will have to continue to overcome the significant hurdles that the Limitation Act 1980 presents if they are to succeed in bringing claims with a latent/historical onset, and there is no sign the ‘tightened up’ stance is going to soften any time soon.

When taking instructions from new clients, solicitors must be sure to thoroughly investigate issues of date of knowledge, and do so promptly. There is a very real risk that by miscalculating the expiry of the limitation period and consequently delaying issuing proceedings, solicitors open themselves up to the possibility of professional negligence claims.

As for curiosity killing the cat, it would seem the opposite could not be more true.

Luke Andrew Menary
Barrister
Liverpool Civil Law