Cartledge v E. Jopling & Sons Ltd

I have had an opportunity of reading the speech which my noble and learned friend, Lord Pearce, is about to deliver, and I agree with it. 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 be 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.

But the present question depends on statute, the Limitation Act, 1939, and section 26 of that Act appears to me to make it impossible to reach the result which I have indicated. That section makes special provisions where fraud or mistake is involved: it provides that time shall not begin to run until the fraud has been or could with reasonable diligence have been discovered. Fraud here has been given a wide interpretation, but obviously it could not be extended to cover this case. The necessary implication from that section is that, where fraud or mistake is not involved, time begins to run whether or not the damage could be discovered. So the mischief in the present case can only be prevented by further legislation.

The evidence in this case is to the effect that a person who is susceptible to pneumoconiosis, and who inhales the noxious dust over a period of years, will have suffered substantial injury to his lungs before, and it may be long before, his injury can be discovered by any means yet known to medical science. And there appears to be no way of finding in advance whether a particular person is susceptible to the disease. The earliest possible diagnosis is from X-ray photographs, but even if such photographs are taken at regular intervals it seems that early indications are not easy to read and it is not at all easy to say, after the first positive indication of the disease has been found, how much time has already elapsed since the injury to the workman first became material. So we have the absurd result that, even if the workman is able to have X-ray photographs taken at regular intervals, a large part, or it might be the whole, of the three-year period of limitation would have elapsed before he could, even with the best possible advice, instruct the raising of an action. And if he were lucky enough to be able to raise an action at all it would be quite impossible at that stage to make any accurate assessment of the probable development of the disease.

Were it not for the fact that a committee which has examined the problem has found it necessary to propose a rather elaborate scheme, I would have been inclined to think that an extension of the scope of section 26 of the Limitation Act would achieve substantial justice without any serious prejudice to the legitimate rights of defendants. Such cases as Davie v. New Merton Board Mills Ltd. and Another[1959] A.C. 604 show that under the law as it now stands several years may not infrequently elapse between the last negligent or wrongful act of the defendant and the date when a cause of action first accrues. In Davie's case the period was seven years. That is because in those cases the danger created by the defendant only causes damage to the plaintiff at a much later date. But there seems little if any practical difference between causing damage which only occurs at a later date and causing damage which can only be discovered at a later date. If a defendant has to pay in the one case why should he not have to pay in the other case? But one thing at least is clear. The fact that the present law requires us to dismiss this appeal shows that some amendment of the law is urgently necessary.

My Lords, my noble and learned friend, Lord Hodson, is unable to be present this morning, and he has asked me to say that he concurs.

I have had the advantage of reading in advance the opinion about to be delivered by my noble and learned friend, Lord Pearce, and I, sharing my regret with him, agree with his conclusion that the appeal must fail.

My Lords, the appeal must turn upon the proper meaning in section 2(1) of the Limitation Act, 1939, of the few and simple words "the date on which the cause of action accrued" when applied to the tort of inflicting bodily injury by a breach of common law or statutory duty; for there can be no valid distinction between the two.

My Lords, it cannot, I conceive, be in doubt upon the numerous authorities (including that of The Darley Main Colliery Company v. Thomas Wilfrid Howe Mitchell in your Lordships' House, 11 A.C. 127) cited by my noble and learned friend that the cause of action from such a wrong accrues when the damage—that is, real damage as distinct from purely minimal damage—is suffered. To postpone the date in such a case as the present would, in my opinion, necessarily require the insertion of some words qualifying the statutory formula. My Lords, the well established principles of the interpretation of statutes by the Courts of this country forbid such an insertion; and more particularly so having regard to the express provision in section 26 of the same Act for postponing the date of the accrual of the cause of action in cases involving fraud or mistake to the date when the fraud or mistake was, or could, with reasonable diligence, have been discovered.

My Lords, I share accordingly with my noble and learned friend the hope that in the interests of justice Parliament will take an early opportunity of making by way of some corresponding qualification a further exception to the general formula in the case of wrongs of the kind here in question. If on the one hand it is right and proper that causes of action should not be allowed to become stale, it must be no less right and proper that persons employed in factories should not have the ordinary enjoyment of their working lives destroyed by the need of constant and elaborate medical examination and be driven, often prematurely, to litigate with their employers lest they lose the benefit of just compensation for injury received. The present case well illustrates the result, for the most part...