Industrial disease claims: limitation and claimant’s date of knowledge 

England and Wales

The Limitation Act 1980 states that a claim must be made within three years of the date of knowledge and that date of knowledge is the date on which the claimant first had knowledge that his injury was attributable to an act or omission which is alleged to constitute negligence, nuisance or breach of duty. In Balls v Reeve, the court held that the claimant’s date of knowledge was not until his diagnosis of asbestosis, allowing the claim to proceed.

Background

The claimant pursued a claim for damages against the personal representatives of his now deceased former employer. He alleged that he was regularly exposed to asbestos when carrying out work as a carpenter for the defendant.

The issue

The defendant argued that the claim was out of time and that the claimant had knowledge of his respiratory condition before his asbestosis diagnosis in 2017, and as early as the 1990s. The defendant relied on the claimant’s own oral evidence, alleging that in 2004 the claimant told his former employer that he was suffering from breathing problems.

The claimant argued that he did not have actual knowledge of a significant injury attributable to his exposure to asbestos during his employment with the defendant until his diagnosis in 2017. If he was wrong, he asked the court to exercise its discretion under section 33 of the Limitation Act to allow the claim to proceed.

High Court decision

Limitation

The court cautioned against placing undue weight on the claimant’s earlier comments about his medical condition and, upon scrutiny of earlier entries in his medical records, it was accepted that the claimant did not have knowledge of significant injury attributable to asbestos exposure until his diagnosis of asbestosis in August 2017.

The court held that in any event it would have exercised its discretion under section 33 as there was no serious prejudice to the defendant as a result of the delay in bringing the claim, therefore to deny the claimant the opportunity to pursue a remedy would have been unjust.

Breach of duty and causation

The court was satisfied that the claimant had established breach of duty and causation. It was not necessary to obtain expert evidence from an occupational hygienist because the claimant’s evidence, including his medical expert’s evidence, was sufficient to prove, on the balance of probabilities, that he had been exposed to significant amounts of asbestos consistent with the Helsinki criteria for up to 30 years i.e. in excess of 25 fibre/ml years.

Conclusion

A limitation defence is often difficult to argue in latent disease cases, where the onset of disability is gradual. When defending a claim on the basis of limitation alone, defendants should ensure that they can demonstrate prejudice caused by any delay in instituting a claim, for example through the destruction of documents or the passing of lay witnesses, and be prepared to lead evidence on it. A well-prepared defendant will not just seek to rely on limitation but should, where possible, advance a limitation defence in conjunction with strong arguments on breach and causation, supported with expert medical and engineering evidence.

Further reading: Balls v Reeve & Anor [2021] EWHC 751 (QB)

The authors would like to acknowledge the assistance of Rebecca Shipton, Solicitor Apprentice in CMS Sheffield, in preparing this article.