Central Asbestos Co Ltd v Dodd
[1972] 2 All ER 1135(Judgment by: Lord Reid)
Central Asbestos Co Ltd
v. Dodd
Judges:
Lord ReidLord Morris of Borth-Y-Gest
Lord Pearson
Lord Simon of Glaisdale
Lord Salmon
Subject References:
Limitation of action
Extension of time limit
Material fact outside knowledge of plaintiff
Lack of knowledge that injuries attributable to negligence, nuisance or breach of duty
Plaintiff knowing that injury resulting from acts and knowing extent of injury
Plaintiff reasonably believing that acts did not afford him grounds for an action at law
Plaintiff not knowing that injuries caused by defendants' wrongful conduct
Plaintiff contracting asbestosis in defendants' employment
Disease caused by defendants' breaches of statutory regulations
Plaintiff receiving disablement benefit in respect of the disease
Works manager informing plaintiff that he could not receive benefit and claim damages against defendants
Legislative References:
Limitation Act 1963 - 1(3); 7(3)
Judgment date: 28 June 1972
Judgment by:
Lord Reid
My Lords, for many years the appellants carried on an asbestos factory in which some safety regulations were disregarded. On one occasion they were convicted of a breach of regulations but otherwise nothing much seems to have been done to put things right. The respondent began work there in 1952. He often inhaled asbestos dust. He was medically examined from time to time. In January 1964 he was told that he was suffering from asbestosis. He felt no ill effects and carried on his work until September 1965 when on medical advice he left this work for employment by the Home Office. In 1964 he claimed disability benefit and received a 10 per cent award. About that time he discussed his position with the works manager, who had also contracted the disease. He was told that if he received disability benefit he could not also claim damages from his employers. So he took no action, and it seems that the works manager also made no claim. In 1967 when the respondent was beginning to suffer considerably he met a fellow employee who told him that he was making a claim against the appellants. So he consulted a solicitor and in October 1967 he took action against the appellants.
The appellants plead that this action is barred by the Limitation Act 1963. Before coming to examine the terms I must recall the circumstances in which it was passed. Under the previous law time ran from the date when the damage was suffered. In Cartledge v E Jopling & Sons Ltd the appellant workmen had contracted pneumoconiosis by inhaling noxious dust before 1950. In this disease, as in asbestosis, the sufferer's lungs may have been damaged many years before any symptoms develop or even many years before any x-ray or other examination can disclose that there is anything wrong. So the men only discovered that they had the disease at various dates from 1955 onwards; and this House was compelled by the terms of the statute to reach the absurd result that a man's claim may be time barred before it is possible for him to know that he has suffered any damage.
Obviously one of the purposes of the 1963 Act was to remedy the defect in the law brought to light in Cartledge's case. But that cannot have been the only purpose. That purpose could have been achieved by a short and simple amendment providing that in cases where the existence of damage caused by a wrongful act or omission cannot (or cannot reasonably) be discovered immediately, time shall not begin to run against the injured person until the first date when by reasonable enquiry he could have discovered the damage. The appellants suggest that Parliament only had in mind that case and the case where, although the injured person knows at once that he has suffered some damage, he cannot know until later the true nature or extent of the damage. The case could have been covered by the kind of amendment which I have suggested by making it apply not only where the existence of the damage but also its true character or extent could not reasonably be discovered immediately.
But the 1963 Act goes far farther than that. It provides by s 1 that the time limit of three years shall not afford a defence in any action for damages for personal injuries caused by negligence, nuisance or breach of duty if the requirements of the section are satisfied. The types of case to which the appellants say the application of the Act is confined form only a minute proportion of such actions of damage for personal injuries. So one must suppose that the Act must be intended to have some more general application to the vast majority of such actions.
Normally one expects to be able to find at least some clue to the general purpose and policy of an Act by reading it as a whole in the light of the circumstances which existed when it was passed or of the mischief which it must have been intended to remedy. But here I can find none. The obscurity of the Act has been frequently and severely criticised; indeed I think this Act has a strong claim to the distinction of being the worst drafted Act on the statute book. But even so I cannot believe that it could have been so elaborately drafted if it had been intended only to have the very limited application for which the appellants contend.
We were invited by counsel for the appellants to look at the committee report which preceded the drafting of the Act. We decided not to do so. It is true that we were only asked to do so in order to see what the committee thought was the problem to be solved. But it would require superhuman powers of detachment to avoid noting what they recommended as the remedy. And it would be misleading to look at their recommendations without also looking at Hansard to see how the problem was presented to Parliament. I have on more than one occasion stated the grave practical difficulties of doing that. Not only would it substantially increase the work of counsel and therefore the cost to litigants but in many cases it would be impracticable to obtain access to reports of the committee stage in Select Committee of the House of Commons where useful material would be most likely to be found.
This at least is plain. The Act extends the three years' time limit in cases where some fact was for a time after the damage was suffered outside the knowledge of the plaintiff, it that fact was 'material' and 'decisive'. Before a person can reasonably bring an action he (or his advisers) must know or at least believe that he can establish (1) that he has suffered certain injuries; (2) that the defendant (or those for whom he is responsible) has done or failed to do certain acts; (3) that his injuries were caused by those acts or omissions; and (4) that those acts or omissions involved negligence or breach of duty.
In the present case the first three of these were all known to the respondent more than 12 months before this action was brought, but the fourth was not; he only got to know of it some six months before the writ was issued. The question for decision is whether the fact that the appellants' acts involved or amounted to negligence or breach of duty is or can be a 'material' or 'decisive' fact within the meaning of the Act.
Some clue as to the intention of Parliament can perhaps be got from the way in which the Act deals with the plaintiff's knowledge. His knowledge may be actual or constructive and s 7(5) provides that, if he does not have actual knowledge, he does not have constructive knowledge if--
'(b) in so far as that fact was capable of being ascertained by him, he had taken all such action (if any) as it was reasonable for him to have taken before that time for the purpose of ascertaining it; and
(c) in so far as there existed, and were known to him, circumstances from which, with appropriate advice, that fact might have been ascertained or inferred, he had taken all such action (if any) as it was reasonable for him to have taken before that time for the purpose of obtaining appropriate advice with respect to those circumstances.'
Section 7(8) provides:
'In this section "appropriate advice", in relation to any fact or circumstances, means the advice of competent persons qualified, in their respective spheres, to advise on the medical, legal and other aspects of that fact or those circumstances as the case may be.'
In order to avoid constructive knowledge the plaintiff must have taken all such action as it was reasonable for him to take to find out. I agree with the view expressed in the Court of Appeal that this test is subjective. We are not concerned with 'the reasonable man'. Less is expected of a stupid or uneducated man than of a man of intelligence and wide experience.
Apart from opinions recently expressed in this House on a very limited class of case in British Railways Board v Herrington this is, I think, a novelty in the law of tort. It shews that Parliament had in mind the common knowledge that most people do not have a legal or businesslike turn of mind. Among other things they are reluctant to visit the terra incognita of a solicitor's office. Indeed that reluctance has been recognised as relevant in the present case because it has been held that it was reasonable for this respondent to rest content with the wrong advice given to him by his works manager although it must have been obvious that the works manager had no real competence to give the advice.
Is it then more likely that Parliament, looking as it did to the circumstances of each individual plaintiff, intended that his ignorance of his legal rights should be treated in the same way as his ignorance of any other material fact, or that the intention was to refuse relief where his ignorance concerned his legal rights but to give relief in all other cases. There is much to be said either way but on the whole I think the former more likely. But of course if the phraseology of the Act points at all clearly the other way, that must prevail. So I turn to examining the wording of the Act.
I have already dealt with the main provisions of s 1, but I must deal with an argument based on the phrase 'material facts relating to that cause of action' in sub-s (3). It was said that the fact that a man does not know that he has a cause of action cannot be a fact relating to that cause of action. I do not see why not. It appears to me that there is a clear relationship or connection between the existence of a thing and knowledge of that thing by a particular person. Indeed some philosophical systems claim that a thing cannot exist unless it is known to some mind. That may be quite wrong but it could not even be made to seem plausible if there were no relationship or connection between the two. This view seems to me to be strengthened if one looks at a phrase used in s 2(3). Section 2 deals with leave to proceed with the action. Subsection (3) after requiring that there shall be evidence shewing the fulfilment of the requirements of s 1(3) also requires it to have been outside the knowledge of the plaintiff that the 'matters constituting that cause of action had occurred on such a date ... ' The change of phraseology from 'facts relating to' to 'matters constituting' the cause of action is noteworthy. The drafting is so involved that it is difficult to explain the reason for the change. But at least 'facts relating to' must be wider than the matters which constitute the cause of action, and it seems to me to be at least a possible explanation that the former phrase is wider because it includes the plaintiff's knowledge--a fact which is not a constituent of his cause of action.
It is not suggested that any help can be got from ss 3 to 6 and I can find none. There is nothing helpful in sub-ss (1), (2), (6) or (7) of s 7 and I have already dealt with sub-s (5). The main arguments turned on the other three subsections and in particular on sub-s (3) which is in these terms:
'In this Part of this Act any reference to the material facts relating to a cause of action is a reference to any one or more of the following, that is to say-
- (a)
- the fact that personal injuries resulted from the negligence, nuisance or breach of duty constituting that cause of action;
- (b)
- the nature or extent of the personal injuries resulting from that negligence, nuisance or breach of duty;
- (c)
- the fact that the personal injuries so resulting were attributable to that negligence, nuisance or breach of duty, or the extent to which any of those personal injuries were so attributable.'
I find it impossible, even after the able arguments which were submitted to us, to discover or even surmise what the draftsman can have had in mind when he drafted this subsection in this way. I have already pointed out that before a plaintiff can reasonably bring his action he must know four things: (1) the nature and extent of his injuries; (2) what the defendant did; (3) causation of the former by the latter; and (4) that what the defendant did was wrongful. These four elements are inextricably confused in (a), (b) and (c) in this subsection.
I can do no more than analyse the language of these three heads and see where that leads to. Head (a) plainly includes injuries and their causation. 'Resulted from' must mean 'were caused by'. Then it says 'resulted from the negligence, nuisance or breach of duty constituting that cause of action'. But strictly speaking negligence, nuisance and breach of duty are legal concepts and physical injuries cannot be caused by legal concepts. So the draftsman must have meant resulting from acts or omissions which were due to or involved the negligence etc constituting the cause of action. This is confirmed by the drafting of the corresponding provision for Scotland in s 13(3) (a), 'the fact that personal injuries resulted from a wrongful act or omission'. Probably the Scottish part of the Act was drafted by a different draftsman, but, if so, he would feel bound to follow the English provision so as to produce the same result. I think that this was a venial fault on the part of the English draftsman, because it is quite common, though not strictly accurate, to speak of injuries being caused by negligence.
But there is another more serious ambiguity. For brevity I take the Scottish phraseology as the ambiguity is the same in both cases. Does 'resulted from a wrongful act' mean resulted from an act alleged to be wrongful or resulted from an act which in fact was wrongful? Head (a) purports to define a material fact which the plaintiff can shew to have been outside his knowledge. If the last part of it means what it says then part of the fact is that the act was in fact wrongful. This would support the respondent's case.
There is a farther point on which the appellants rely. In head (a) the words 'personal injuries' occur without the definite article. In heads (b) and (c) the words are 'the personal injuries'. One must assume that the omission of the definite article in (a) was deliberate. 'Personal injuries' must there mean some personal injuries, ie some at least of the personal injuries for which damages are sought. This would fit in with head (b) where the fact is the nature and extent of the injuries.
The appellants argue for quite a different meaning for head (a) which requires much violence to be done to its language. If I understood these arguments rightly, head (a) must be taken to mean 'the fact that the plaintiff suffered personal injuries as a result of which he (alleges that he) has a cause of action'. They say that head (a) was intended to deal only with the case of the plaintiff who, as in Cartledge's case, did not or could not know at the time that he had suffered any injury at all. Even if I could see anything indicating such a limited intention, which I cannot, I would think this too great a departure from the statutory language to be permissible as a matter of interpretation. So head (a) must be a composite fact consisting of at least three and possibly four different facts namely (1) the existence of injuries, (2) caused by, (3) acts of the defendant, and possibly also (4) the wrongfulness of those acts.
Head (b) needs no explanation. But head (c) is even more obscure than head (a). It seems at first sight to cover the same ground. Indeed there are only two additions--(1) the word 'the' before 'personal injuries' and (2) the insertion of the word 'attributable', apart from the last line. One must assume that the draftsman intended head (c) to denote some new fact different from anything in head (a). So probably the key lies in the use of the word 'attributable'. That means capable of being attributed. 'Attribute' has a number of cognate meanings; you can attribute a quality to a person or thing, you can attribute a product to a source or author, or you can attribute an effect to a cause. The essential element is connection of some kind. I have pointed out that strictly one cannot say that injuries are caused by the legal concept of negligence. But it would be quite proper to attribute injuries to negligence. The connection here is that the injuries were caused by certain acts and that those acts involved or amounted to negligence. If that is the meaning here it explains the last line of head (c). We are dealing with material facts outside the knowledge of the plaintiff and he may know that to some extent his injuries were attributable to the defendant's negligence but be ignorant of the full extent to which they were so attributable.
Unless head (c) is intended to bring in as a material fact the fact that the plaintiff did not know that his injuries were attributable to the defendant's negligence, ie that he had a legal remedy or cause of action against the defendant, I am unable to make any sense at all of it. The only linguistic difficulty lies in the words 'attributable to that negligence, nuisance or breach of duty' referring back to the use of these words in heads (a) and (b). If my interpretation of head (c) is right then negligence in head (c) is used in a rather different sense than in heads (a) and (b). Normally one assumes that when the same word is used twice or more in the same section it has the same meaning. But in such a welter of bad drafting as one finds here that would be a very unsafe assumption. So I do not attach very great importance to this discrepancy.
It only remains to deal with s 7(4) which is as follows:
'For the purposes of this Part of this Act any of the material facts relating to a cause of action shall be taken, at any particular time, to have been facts of a decisive character if they were facts which a reasonable person, knowing those facts and having obtained appropriate advice with respect to them, would have regarded at that time as determining, in relation to that cause of action, that (apart from any defence under section 2(1) of the Limitation Act 1939) an action would have a reasonable prospect of succeeding and of resulting in the award of damages sufficient to justify the bringing of the action.'
Is was argued for the appellants that this provision does not fit if the material fact alleged to be decisive is the plaintiff's ignorance as to his having a cause of action. I do not agree. The gist of the subsection is the question whether, after obtaining appropriate (in this case legal) advice, a reasonable person with the plaintiff's knowledge would know not only that he had a reasonable prospect of success but also that he was likely to obtain sufficient damages to justify the bringing of an action. The reasonable person would not be a lawyer, else why should the subsection require him to take advice. And a reasonable layman would not, without taking advice, in many cases be able to estimate either his chances of success, or whether he was likely to obtain sufficient damages. So I see no difficulty arising out of this subsection if the respondent is right.
On the whole matter the Act is so obscure that I do not think it possible to form a confident opinion. But for the reasons which I have given I am of opinion that on balance both general considerations and the phraseology of the crucial provisions of the Act tell in favour of the respondent's case.
I would therefore dismiss this appeal.