27 May 2014Print This Post

Cancer victim “should have asked” about causes of disease

Jackson LJ

Jackson LJ: “reasonable person” would have asked about causes

A former dock worker who helped unload cargoes of asbestos should have asked doctors about possible causes of his lung cancer diagnosed 35 years later, Lord Justice Jackson has ruled.

In a decision which could have significant consequences for claimants in industrial disease cases, Jackson LJ upheld the High Court’s decision that the man had “constructive knowledge” for the purposes of the Limitation Act 1980.

As a result, the Court of Appeal upheld the judge’s decision not to use his discretion under section 33 of the Act to extend the limitation period.

The question of how to treat the delay between George Collins starting work at the docks in 1947 and his diagnosis with cancer in 2002, was described by counsel on both sides as “an issue of seminal importance in relation to long-tail industrial disease claims”, the judge recounted.

The court heard that Mr Collins, now 89, worked at various London docks between 1947 and 1967, before becoming a crane driver.

He did not get in touch with solicitors until 2009, when his wife saw an advert in The Daily Mail by York-based law firm Corries.

Having investigated the claim in what Jackson LJ described as a “somewhat leisurely manner”, it was only in 2012, almost three years after the law firm was instructed, that the claim was lodged.

The High Court ruled last year that Mr Collins did not have actual knowledge of the possible link between his lung cancer and his previous exposure to asbestos until 2009. However, Mr Justice Nicol ruled that he did have constructive knowledge in 2003 under section 14(3) of the Limitation Act, because, as a ‘reasonable man’, he should have asked the doctor about the possible causes of his cancer.

As a result his limitation period expired after the usual three years, and, applying the criteria in section 33 of the Act, it would not have been equitable for the judge to extend it any further.

Delivering the leading judgment in Collins v Secretary of State for Business Innovation and Skills [2014] EWCA Civ 717, Jackson LJ said Parliament had struck a balance between the needs of claimants who “having suffered latent injuries, seek compensation late in the day” and tortfeasors who “despite their wrongdoings ultimately need closure”.

That balance had been struck by an “objective test”, Jackson LJ said, and Nicol J was “entirely right to say that a reasonable person in the claimant’s position would have asked about the possible causes of his lung cancer by mid-2003”.

He went on: “The medical records reveal that during 2002 at least one doctor questioned the claimant about his lifestyle and former employment. Obviously the doctor was asking these questions for a purpose.

“Any reasonable person in the claimant’s position would have been prompted to inquire what light this shed upon the possible causes of his cancer.”

Turning to section 33(3), Jackson LJ said that pre-limitation effluxion of time was “merely one of the relevant factors to take into account”, and both parties could rely on it for different purposes.

The claimant could argue that recent delay had “little or no impact on the cogency of the evidence”, and the damage was done already. The defendant could argue that the passage of time to show it already faced “massive difficulties” and any further delay was a serious matter.

Lord Justice Jackson dismissed the appeal. Lord Justice Lewison and Lady Justice Macur agreed.

 

 

By Nick Hilborne

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