Arnold v Central Electricity Generating Board
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE RALPH GIBSON,LORD JUSTICE NICHOLLS,THE MASTER OF THE ROLLS |
| Judgment Date | 15 October 1986 |
| Judgment citation (vLex) | [1986] EWCA Civ J1015-1 |
| Docket Number | 86/0885 |
| Court | Court of Appeal (Civil Division) |
| Date | 15 October 1986 |
[1986] EWCA Civ J1015-1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(MR. MICHAEL OGDEN, Q.C., sitting as a Deputy High Court Judge)
Royal Courts of Justice.
The Master of the Rolls
(Sir John Donaldson)
Lord Justice Ralph Gibson
and
Lord Justice Nicholls
86/0885
1984 A. No. 1319
MR. J.L. FOY (instructed by Messrs. Lawford & Co., WC1R 5EJ) appeared on behalf of the (Plaintiff) Respondent.
MR. A.J.D. NICHOLL (instructed by Messrs. Berrymans, London agents for Messrs. Godfrey Diggines & McKay of Birmingham) appeared on behalf of the (Defendant) Appellant).
This is an appeal by the defendants, the Central Electricity Generating Board, from the order of Mr. Michael Ogden, Q.C., sitting as a deputy High Court judge, whereby he decided on a preliminary issue in favour of the plaintiff, Mrs. Emma May Arnold. He held that the plaintiff's action as widow and administratrix of the estate of her husband, Mr. Albert Edward Arnold, was not statute barred by the provisions of section 21 of the Limitation Act 1939. That section of the 1939 Act was repealed by the Law Reform (Limitation of Actions) Act 1954 some 28 years before the death of the deceased from the industrial disease of mesothelioma on the 21st May, 1982 in respect of which the plaintiff claims damages as his widow and dependant. The facts and the history of legislative changes over the years will explain why the defendants say that that long repealed section protects them from this claim and why the plaintiff contends that she should be allowed to proceed with a claim based upon breaches of duty which are said to have occurred 41 years before the date of the writ.
The deceased was employed by Birmingham Corporation at Hams Hall Power Station as a boiler cleaner from April 1938 to April 1943. The Corporation operated the power stations under the provisions of the Birmingham Corporation Act 1899. The deceased was 70 years old when he died. He had been admitted to hospital in February 1981 for a time. He suffered pain and shortness of breath. In October 1981 he was found to be suffering from mesothelioma. The plaintiff issued her writ on the 13th April, 1984. She claims that the deceased was exposed in his work at the power station to asbestos dust as a result of the negligence and breach of statutory duty of his then employers, Birmingham Corporation, and that his disease and death from mesothelioma were caused thereby. The defendants admit and assert that they are, as successors to Birmingham Corporation in respect of the power station, subject to the liabilities and entitled to the rights of the Corporation in respect of the plaintiff's claim. The allegations of breach of duty are denied. In this appeal the court is not concerned with the merits of the plaintiff's claim or with her prospects of proving that, according to the then state of knowledge in industry, the employers of the deceased were guilty of any breach of duty towards him.
It is common ground between the parties that any cause of action which the deceased may have had was statute barred by section 21 of the Act of 1939 by April 1944 at latest, one year after the deceased left his employment at the power station. The provisions of section 21 had replaced, as regards civil proceedings, section 1(a) of the Public Authorities Protection Act by increasing the period within which actions against "public authorities" were required to be brought from six months to a year. That section was a separate provision of limitation in respect of "any act done" or of "any neglect or default" in execution of a public duty.
The defence of the defendants, served on the 11th February, 1985, pleaded that the plaintiff's claim is statute barred by virtue of the provisions of section 1 of the Public Authorities Protection Act 1893 and by section 21 of the Act of 1939. The issue raised by that plea was the preliminary issue which was decided against the defendants.
In his judgment the learned deputy judge referred to the difficulty facing judges in interpreting the provisions of the sequence of Limitation Acts which have been enacted from 1939 to 1980. I agree, but in fairness to the draftsmen it must be said that in the continuing efforts to make limitation rules work fairly they become inescapably complicated. He traversed with the help of counsel the long sequence of statutory provisions from 1939 to 1980 but he did not find it necessary to examine them all in his judgment. The key statute for the purposes of this case was in his view the Act of 1975. If the defendants had not been successors to a public authority, so that any cause of action of the deceased for wrongful exposure to asbestos dust prior to April 1943 would have been barred by April 1949 under section 2 of the 1939 Act, instead of in April 1944 under section 21 of that Act, then the plaintiff's claim would not be barred merely by the passage of time. There was, he said, in Knipe v. B.R.B. [1972] Q.B. 361, a decision of this court, binding authority to that effect. Accordingly the defendants' claim was that public authorities were and are in a special position in this regard on the ground that nothing in later legislation had deprived them of the right, which was said to be demonstrated by the decision in Yew Bon Tew v. Kenderaan Bas Mara [1983] 1 A.C. 553, to rely upon an accrued right of protection under a time bar notwithstanding the repeal of the relevant provision.
The learned deputy judge worked backwards from the Limitation Act 1980 which was in force when the writ was issued. He noted that by paragraph 9 of the Second Schedule to the 1980 Act:
"Nothing in any provision of this Act shall—
(a) enable any action to be brought which was barred by this Act or (as the case may be) by the Limitation Act 1939 before the relevant date;"
which for the purposes of that provision is the 1st August, 1980. It was necessary to ask whether the plaintiff's right of action was barred before that date by the provisions of the Act of 1975 which had been inserted into the 1939 Act. He considered the new section 2A(i) which provided that:
"This section applies to any action for damages for negligence, nuisance or breach of duty" in personal injury claims.
He concluded that there was no reason to interpret section 2A(i) of the 1939 Act, as inserted by the Act of 1975, as not applying to actions against public authorities including an action in respect of which the public authority, prior to the enactment of the 1975 Act, had an accrued right of protection under a limitation provision. By 1975 all public authorities were, in his view, regarded as being in the same position as any other party so far as concerned limitation of action and "any action" included one against a public authority.
For my part, on first reading the papers, the conclusion at which the learned deputy judge had arrived seemed in accordance with what appeared to be the legislative purpose of this series of Acts. Close examination of the statutory provisions has shown, however, that the question is one of much difficulty.
The submissions of Mr. Nicholl for the appellants can be summarised thus: The principle stated by the Judicial Committee of the Privy Council in Yew Bon Tew's case applied in this case. The accrued right of the defendants' predecessors under section 21 of the Act of 1939 had not been expressly taken away and nothing in the legislation required or justified the conclusion that that right had been impliedly destroyed. Mr. Nicholl directed our attention to the legislative history of these provisions. For my part I am persuaded that Mr. Nicholl's main submission is correct and that the defendants' accrued right of defence still persists. My reasons for reaching that conclusion are as follows.
I agree with the learned deputy judge that the key statute is the Act of 1975 of which the provisions are now contained unchanged in the Limitation Act 1980, which was a Consolidation Act. I also agree with him that the final question decisive of this appeal is one of construction of the relevant parts of the 1980 Act which was in force when the plaintiff's writ was issued. I have found it necessary, however, to consider in detail the effect of the sequence of Acts upon the rights of the defendants at different stages in order to ascertain what if any accrued rights of defence survived until 1975. It seemed to me necessary to know what Parliament had previously done to those rights in order to decide what Parliament must be taken to have intended by the provisions enacted in 1975.
When the deceased started work at the power station in April 1938 the relevant limitation provisions for actions against public authorities, which category included his employers, was section 1(a) of the 1893 Act and the period was six months. The Act of 1939 repealed section 1(a) of the 1893 Act so far as concerns civil proceedings and by section 21 substituted a one-year period of limitation for such actions from the 1st July, 1940. It is probable that it was section 21 of the 1939 Act which applied to any claim which the deceased had. Since the deceased left his employment on the 6th April, 1943 any claim of the deceased was barred by section 21 by the 6th April, 1944, i.e. one year after the latest possible exposure of the deceased to asbestos dust in his employment. It would make no difference if on the facts it should turn out that the latest exposure to...
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