Cartledge v E. Jopling & Sons Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SELLERS,LORD JUSTICE PEARSON |
| Judgment Date | 23 June 1961 |
| Judgment citation (vLex) | [1961] EWCA Civ J0623-2 |
| Date | 23 June 1961 |
| Court | Court of Appeal |
[1961] EWCA Civ J0623-2
Lord Justice Sellers
Lord Justice Harmak and
Lord Justice Pearson
In The Supreme Court of Judicature
Court of Appeal
Mr. G.S. WALLER, Q.C. and Mr. JOHN COBB (instructed by Messrs. Rowley, Ashworth & Co.) appeared on behalf of the Appellants (Plaintiffs).
Mr. PATRICK O'CONNOR, Q.C. and Mr. P.M. TAYLOR (instructed by Messrs. T.D. Jones & Co., Agents for Messrs, Linsley & Mortimer, Newcastle-upon-Tyne) appeared on behalf of the Respondents (Defendants).
: The disease of pneumoconiosis, which attacked all the ten workmen of the defendants whose affliction with the disease gave rise to the ten consolidated actions the subject of this appeal, is better understood now both medically and from he industrial point of view than it was, it would appear, in some at least of the years which are material to this case.
It is perhaps unfortunate, in a period of transition from lack of knowledge of the source of the disease and of practice to nrevent it to the present state of greater understanding of the disease and its cause and of preventive measures to combat it at liability, which might be said to arise somewhat technically should be placed on the defendants who were confronted with the requirements and restrictions of war from the autumn of 1939 onwards and who were not lacking in care and consideration for their workmen. It seems no less unfortunate that if liability does lie for breach of statutory duty the claims of the workmen, who had even less knowledge of the disease and their rights and obligations in respect thereof than their employers, should in the circumstances of these unusual cases be confronted with the plea of the Limitation Act to defeat their redress.
But what caused the disease and whether the claims in respect thereof are statute-barred are the main issues in all these consolidated actions.
The defendants, the respondents to the appeal, make steel castings in their factory at Sundevland and as occupiers have to comply with the requirements of the Factories Act, 1937, and any relevant regulations made thereunder. The workmen concerned in these claims were all steel dressers (or fettlers). This is an occupation which brought them into contact over many years with fine silica dust, which is the cause of the disease of the lungs described as pneumoconiosis.
The writs were issued on the 1st October, 1956. After that Frederick Hector Cartledge died and his widow issued a new writ, as administratrix of his estate, and her action has been treated by agreement as if her writ had been issued also on the 1st October, 1956.
Mr. Justice Glyn-Jones found that the disease of pneumoconiosis had been caused by reason of the defendants' breach of duty in respect of each of the claims but he found in each case that the cause of action had occurred before the 1st October, 1950 - that is, more than six years before the issue of the writs - and he therefore gave judgment for the defendants.
In an admirably thorough, careful and clear judgment the learned judge has found the facts fully and in great detail, but both sides have asked this court to take a different view. The appellants have sought to establish breaches of duty by the defendants extending well within the six-year period and causing or accelerating or aggravating the disease in respect of which they claim damages and have contended that no cause of action had accrued in any of the cases prior to the 1st October, 1950. The respondents, whilst financially satisfied to uphold the judgment as it stands, contended that they were at no time in breach of duty and if they were it has not been proved that any breach caused or accelerated or aggravated the plaintiffs' disease.
After the searching inquiry into the facts which learned counsel on both sides conducted before this court I have come to the conclusion that we ought not to disturb the learned judge's findings either with regard to the breaches of duty or the causes of the disease of pneumoconiosis which in the course of time descended upon each of the plaintiffs. These matters have been fully considered by both of my brethren, with whose reasonings and conclusions I so entirely agree that I do not propose to cover the ground again, especially as we are all in agreement with the clear finding of tne learned judge.
The most anxious part of this case, and that of general importance, is that claims which would otherwise have been esablished have been held to be barred by the Limitation Act, 1039 section 2, wherein it is provided that actions founded on tort. (as are these actions) shall not be brought after the expiration of six years (in 1954 reduced to three years) from the date on which the cause of action accrued.
When did the cause of action accrue? It was accepted that until injury was inflicted on each of the men concerned no cause of action arose. The difficulty has been to apply the statute to the facts of cases such as these where some latent, slowly accruing and progressive damage may be done to the lungs of a workman during many years without his being aware of it or even if he had some "suspicion" of the encroachment of the disease where he was not disabled by it and where to have launched an action would have been imprudent and premature because of the doubt and uncertainty of proof of any injury which could justify an award of damages for the distress, incapacity for work and curtailment of life which would in course of time arise if the disease of pneumoconiosis could be proved with reasonable certainty to have been suffered.
The courts have discouraged delay in seeking redress and so has legislation but on the other hand there has been no encouragement given to precipitate litigation. It is undesirable for workmen to be encouraged to keep their eyes on the courts.
These are not, however, cases where it can be said that the statute might impose a time limit before there was any injury at all, as was argued in Watson v. Winget Ltd. (an unreported decision of the House of Lords, 28th July, 1960), where section 6 subsection 1 of the Law Reform (Limitation of Actions) Act, 1954, dealing with the period of limitation in Scotland, was under consideration. A man would not lose his right of action before some injury had arisen but, as the decision stands, time might well begin to run years before any reasonable man. would think of issuing a writ to get redress for his injuries which physically and medically might be accruing.
Damages in actions such as these can only be recovered once and to bring an action on the shadowy evidence of an X-ray photograph when no physical disability or discomfort had arisen might well mean failure to prove in anticipation the probability of the development of the worst features of the disease so that adequate damages could be assessed in respect thereof. If there were no X-ray or similar aids to clinical ascertainment of bodily injury, which have developed over the last 50 years, probably no problem would have arisen. The time when a man felt ill or incapacitated and a doctor, if consulted, by clinical examination and by balancing the symptoms could have reliably diagnosed pneumoconiosis, might readily have been recognised as the time of the inception of the disease and therefore of the cause of action. A few years hence the X-ray may be replaced or supplemented by other methods of examination which may detect, earlier and more reliably, the onset and the inevitable progress of the disease. Dependence on such factors seems unsatisfactory and provides no reliable guide as to when a man's rights arise and a period of time commences to run against him.
In these circumstances I have been tempted to seek "the wisdom of the Common Law - to prevent the injustice which might grise, from too literal an adherence to the words of an Act of Parliament", to use the words of Lord Tenterden cited by Lord Denning in Watson v. Winget Ltd., but I have come to the con-clusion that if our decision is correct and, it is thought, results in real hardship, particularly now that the period is no longer than three years, it should be remedied by legislation.
The present cases are border-line findings in favour of any liability at all and, as it chanced, in respect of some of men there were X-rays taken in the Summer of 1950 which again provide border-line evidence on which in the case of the men Concerned the disease (as distinct from some early damage) might he held to have been established beyond recovery. And it may be, as the medical evidence suggests, that if the other men had been to X-rayed at the same time similar signs would have been found except possibly in the case of South. This was thought to have been conceded on behalf of the plaintiffs but whether this was a misunderstanding or not it would be difficult for this court to hold that it was not a tenable view. Nevertheless I feel some doubt whether the expert Medical Board set up under the National Insurance Act would have accepted the evidence,...
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Court Of Appeal Dismisses Claims For Financial Losses
...damage by reason of the physiological changes in their bodies. In his judgment, Sales LJ reviewed the decisions of Cartledge v Jopling: [1962] 1 QB 189, CA, [1963] AC 758, HL, concerning development of pneumoconiosis, and Rothwell v Chemical and Insulating Co. Limited [2007] UKHL 39; [2008]......