Arnold (Widow and Administratrix of the Estate of Albert Edward Arnold Deceased) v Central Electricity Generating Board
| Jurisdiction | England & Wales |
| Judge | Lord Bridge of Harwich,Lord Fraser of Tullybelton,Lord Brightman,Lord Ackner,Lord Oliver of Aylmerton |
| Judgment Date | 22 October 1987 |
| Judgment citation (vLex) | [1987] UKHL J1022-1 |
| Court | House of Lords |
[1987] UKHL J1022-1
House of Lords
Lord Bridge of Harwich
Lord Fraser of Tullybelton
Lord Brightman
Lord Ackner
Lord Oliver of Aylmerton
My Lords,
The appellant plaintiff ("the widow") is the widow of Albert Edward Arnold ("the deceased"). In an action commenced by writ dated 13 April 1984 she claims damages under the Fatal Accidents Act 1976 and the Law Reform (Miscellaneous Provisions) Act 1934 against the respondent defendants ("the board"). The deceased was employed by the Birmingham Corporation at Hams Hall Power Station between April 1938 and April 1943. It is common ground that any liabilities of the Birmingham Corporation arising from the operation of the power station have since devolved upon the Board. The widow's statement of claim alleges that the deceased worked under conditions in which the Birmingham Corporation, negligently and in breach of statutory duty, failed to protect him from the inhalation of asbestos dust, as a result of which he contracted mesothelioma. This condition was first diagnosed in October 1981 and was the cause of the death of the deceased on 21 May 1982.
The board's defence pleads, inter alia, by paragraph 10:
"The plaintiff's claim is statute-barred by virtue of the provisions of section 1 of the Public Authorities Protection Act 1893 and section 21 of the Limitation Act 1939, the deceased having brought no proceedings against the Birmingham Corporation in respect of the matters alleged in the statement of claim within twelve months of the date on which his cause of action accrued."
The issue raised by this paragraph was ordered to be tried as a preliminary issue. It was tried and decided in favour of the widow by Mr. Michael Ogden Q.C. sitting as a deputy judge of the High Court [1986] 3 W.L.R. 171. That decision was reversed by the Court of Appeal (Sir John Donaldson M.R., Ralph Gibson and Nicholls L.JJ) [1987] 2 W.L.R. 245. The widow now appeals by leave of your Lordships' House.
In 1943 the relevant statute in force was the Limitation Act 1939. This prescribed by section 2(1) a general period of limitation of six years for, inter alia, actions founded on tort. But section 21 prescribed a period of limitation of one year for actions against public authorities to which the Public Authorities Protection Act 1893 applied. The Birmingham Corporation was such an authority. It is to be assumed for the purpose of deciding the preliminary issue that the deceased contracted mesothelioma in the course of his employment by the Birmingham Corporation, i.e. at the latest by April 1943, and that a cause of action against the Birmingham Corporation in respect of that injury then accrued to him. Thus at the latest by April 1944 any cause of action which the deceased had against the Birmingham Corporation in respect of his mesothelioma was statute-barred.
The current general law of limitation of actions is found in the Limitation Act 1980, a consolidating statute, which, by section 11(4), prescribes for personal injury actions a period of three years from — "( a) the date on which the cause of action accrued; or ( b) the date of knowledge (if later) of the person injured."
It is common ground that "the date of knowledge" of the deceased within the meaning of that phrase in section 11(4) as defined by section 14 was not earlier than October 1981. If the deceased had a cause of action subsisting at the date of his death in May 1982, there is nothing in the Act of 1980 which would bar the widow's claims in an action commenced in April 1984.
Paragraph 9(1) of Schedule 2 to the Act of 1980 provides, so far as relevant, that:
"Nothing in any provision of this Act shall — ( a) enable any action to be brought which was barred … by the Limitation Act 1939" before 1 August 1980.
Thus the critical question to be determined in this appeal is whether anything in the series of statutes dealing with limitation of actions leading up to the 1980 consolidation, each of which was passed to ameliorate aspects of the law believed to operate unjustly, has had the effect of removing retrospectively the bar to the widow's action which accrued to the Birmingham Corporation pursuant to section 21 of the Act of 1939.
By section 16(1) of the Interpretation Act 1978 (re-enacting section 38(2) of the Interpretation Act 1889) the repeal of an enactment "does not, unless the contrary intention appears, … ( c) affect any right, privilege, obligation or liability acquired, accrued or incurred under that enactment …" In Yew Bon Tew v. Kenderaan Bas Mara [1983] 1 A.C 553 the Privy Council held that, on the expiry of a relevant period of limitation, a potential defendant to an action acquired an "accrued right" within the meaning of an identical provision in the Malaysian Interpretation Act 1967 to rely on the time-bar as giving him immunity from liability, which was not affected by the subsequent repeal of the relevant limitation provision unless the contrary intention appeared. Lord Brightman, delivering the judgment of the Board, went further when he said, at p. 558:
"Apart from the provisions of the interpretation statutes, there is at common law a prima facie rule of construction that a staute should not be interpreted retrospectively so as to impair an existing right or obligation unless that result is unavoidable on the language used."
The Law Reform (Limitation of Actions, &c.) Act 1954, which came into force on 4 June 1954, repealed the Public Authorities Protection Act 1893 and section 21 of the Act of 1939. It amended section 2(1) of the Act of 1939 by the addition of the following proviso:
"Provided that, in the case of actions for damages for negligence, nuisance or breach of duty … where the damages claimed by the plaintiff for the negligence, nuisance or breach of duty consist of or include damages in respect of personal injuries to any person, this subsection shall have effect as if for the reference to six years there were substituted a reference to three years."
Section 7(1) provided:
"The time for bringing proceedings in respect of a cause of action which arose before the passing of this Act shall, if it has not then already expired, expire at the time when it would have expired apart from the provisions of this Act or at the time when it would have expired if all the provisions of this Act had at all material times been in force, whichever is the later."
Thus, its effect in relation to actions for damages for personal injuries against public authorities was to apply the new limitation period of three years to causes of action which accrued within 12 months before 4 June 1954, but not to revive any cause of action which accrued more than 12 months before that date and which was already time-barred. Its effect in relation to actions for damages for personal injuries against other defendants was to leave causes of action which accrued between 4 June 1948 and 4 June 1954 subject to the limitation period of six years pursuant to the unamended section 2(1) of the Act of 1939 and to apply the limitation period of three years under the subsection as amended by the proviso only to causes of action accruing after 4 June 1954.
The injustice which rigid periods of limitations are capable of causing in certain classes of personal injury action was thrown into high relief by Cartledge v. E. Jopling & Sons Ltd. [1963] A.C. 758. A number of steel dressers had contracted pneumoconiosis by inhaling noxious dust while working at the defendants' factory. As a result of changes at the factory, the plaintiffs could establish no breaches of duty by their employers making any material contribution to the causation of the injuries to their lungs after September 1950. They issued writs on 1 October 1956 commencing actions which were, in due course, consolidated. Thus, any relevant breach of duty responsible for the initial onset of the disease had in each case occurred more than six years before the actions were brought. As the House felt obliged to hold, the plaintiffs' causes of action were statute-barred although they had accrued to the plaintiffs long before they could have known of their condition. As one would expect, all their Lordships deplored this result. It will be sufficient for present purposes to cite two passages from the speeches. Lord Reid said, at pp. 771-772:
"It is now too late for the courts to question or modify the rules that a cause of action accrues as soon as a wrongful act has caused personal injury beyond what can be regarded as negligible, even when that injury is unknown to and cannot be discovered by the sufferer, and that further injury arising from the same act at a later date does not give rise to a further cause of action. It appears to me to be unreasonable and unjustifiable in principle that a cause of action should be held to accrue before it is possible to discover any injury and, therefore, before it is possible to raise any action. If this were a matter governed by the common law I would hold that a cause of action ought not to be held to accrue until either the injured person has discovered the injury or it would be possible for him to discover it if he took such steps as were reasonable in the circumstances. The common law ought never to produce a wholly unreasonable result, nor ought existing authorities to be read so literally as to produce such a result in circumstances never contemplated when they were decided."
Lord Morris of Borth-y-Gest said, at p. 776:
"The evidence in the present case shows indisputably that there may be lung injury caused by the inhalation of fine particles of silica and that an injured person may, without any kind of fault on his part, be unaware of the fact that...
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