Harley and Others v Smith and another
| Jurisdiction | England & Wales |
| Judge | Sir John Chadwick,MR JUSTICE FOSKETT,Lord Justice Rimer |
| Judgment Date | 17 February 2010 |
| Neutral Citation | [2010] EWCA Civ 78 |
| Docket Number | Case No: A2/2009/0350 |
| Court | Court of Appeal (Civil Division) |
| Date | 17 February 2010 |
[2010] EWCA Civ 78
(Mr Justice Foskett)
Before : Sir Mark Potter
President of the Family Division
Lord Justice Rimer
and
Sir John Chadwick
Case No: A2/2009/0350
HQ06X02304, HQ06X02764, HQ06X02301
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Mr Stephen Cogley (instructed by Clark Ricketts LLP, Waterman House, 41 Kingsway, London WC2B 6TP) for the Appellants
Mr Robert Weir (instructed by Thompsons, The McLaren Building, 35 Dale End, Birmingham B4 7LF and Bridge McFarland, 9 Lumley Avenue, Skegness, PE25 2AH) for the Respondents
Hearing date : 28 October 2009
Sir John Chadwick:
This is an appeal from an order made on 28 January 2009 by Mr Justice Foskett on the hearing of a preliminary issue in proceedings brought by three former employees against their employer and a co-employee. The claims in the proceedings arose out of an incident which occurred on 7 May 2003 in the territorial waters of the Kingdom of Saudi Arabia. The preliminary issue for determination was whether, pursuant to the Foreign Limitation Periods Act 1984, the claims were time-barred by the expiry of the relevant period of limitation under Saudi law. The judge held that they were not.
Sections 1 and 2 of the Foreign Limitation Periods Act 1984 are in these terms (so far as material):
“1(1) Subject to the following provisions of this Act, where in any action or proceedings in a court in England and Wales the law of any other country falls (in accordance with rules of private international law applicable by any such court) to be taken into account in the determination of any matter—
(a) the law of that other country relating to limitation shall apply in respect of that matter for the purposes of the action or proceedings; and
(b) except where that matter falls within subsection (2) below,
the law of England and Wales relating to limitation shall not so apply.
…
2(1) In any case in which the application of section 1 above would to any extent conflict (whether under subsection (2) below or otherwise) with public policy, that section shall not apply to the extent that its application would so conflict.
(2) The application of section 1 above in relation to any action or proceedings shall conflict with public policy to the extent that its application would cause undue hardship to a person who is, or might be made, a party to the action or proceedings.
…”
The underlying facts
The second defendant, Khalifa A Algosaibi Diving and Marine Services (commonly abbreviated to “ADAMS”), is a Saudi-based company. The three claimants, Mr Stephen Harley, Mr Michael Hopley and Mr Andrew Iles, were employed by ADAMS as professional divers. On 7 May 2003 they were working from a vessel owned by Saudi Aramco, the state-owned national oil company, in waters off Al Khobar. The first defendant, Mr Ian Smith was a co-employee and their diving supervisor.
The claimants allege that, on 7 May 2003, they were required to work in water into which toxic chemicals had been discharged from the Aramco vessel; with the consequence that each suffered long-term injury to health. None has been able to resume employment as a diver.
There is, I think, little or no dispute as to what occurred on 7 May 2003. The incident is described in a facsimile message sent by ADAMS local Operations Manager, Mr William Stonebanks, to AON Occupational Health in Aberdeen on 22 May 2003:
“In brief, the divers were undertaking a surface hose change on an SPM. They were working from a Client's vessel and the client was in charge of flushing the hoses. The chemicals were used by the Client. The task does not involve diving equipment other than a wet suit and/or coveralls and occasionally a face mask as the flanges are 90% out of the water. The divers worked in pairs disconnecting the three flanges and splitting the hose strings and then some hours later reconnecting the three hose strings. Whist disconnecting the last hose string a white/brown sludge was discharged into the sea. The divers did try to disperse it with a water hose. During and after reconnecting the hoses all 6 divers that had been in the water complained of breathing difficulties and a tightness of the chest….”
In a letter dated 24 May 2003 to the First Secretary at the British Trade Office in Al Khobar, Mr Stonebanks explained that:
“These personnel suffered various reactions to the escaped substance, including rashes, nausea and temporary respiratory difficulties. Their initial treatment was on board the ARAMCO support vessel by the ARAMCO paramedic and when they did not recover fully, it was determined that they should be transferred to the Al Mana Hospital in Al Khobar for observation and treatment. Following a period of days in the hospital they were duly discharged …”
The claimants returned to the United Kingdom on 17 June 2003. The circumstances leading to their return – and the basis upon which they did so – appear from Mr Stonebanks’ letter of 24 May 2003:
“Subject to medical clearance as to fitness to travel and Saudi coastguard permission, we are at present planning to arrange for the British divers to be repatriated so that their condition can be assessed by a specialist occupational health and offshore medical unit based in Aberdeen. We retain this unit on a long-term basis to provide advice and assistance in the event of an underwater injury or accident.
Subject to the outcome of that re-assessment of their present condition and any further treatment as prescribed, they will then undergo a full Diver Medical Examination under UK HSE regulations to ensure they are fit to return to diving work.
All costs (transport, medical etc) related to the foregoing will be borne by this Company and during this period these employees will receive their full salary as specified within their individual Contracts of Employment.”
In letters dated 10 June 2003 Mr Stonebanks confirmed to the three claimants that ADAMS would pay the costs of medical assessment and further remedial treatment; and that:
“During this period of recuperation you will remain on full pay as per the terms of your Contract of employment”.
The judge accepted that, during the period before their return to the United Kingdom, the claimants were concerned as to the claims that they might have against ADAMS: on the basis, it seems, that they took the view that their diving supervisor and co-employee, Mr Smith, bore some responsibility for what had occurred. The judge described, in some detail, the efforts which the claimants had made to obtain legal advice in Saudi Arabia during that period. It is, I think, sufficient – for reasons which will appear later in this judgment – to record the judge's finding, at paragraph [34] of his judgment, [2009] EWHC 56 (QB), that:
“[34] I am quite satisfied that ADAMS, for whatever reason it was, found the continued presence in the KSA of these three men, who wanted to seek compensation from them and/or from ARAMCO, an embarrassment. Whilst, as I have indicated, it would be impossible to conclude that ADAMS actively strove to prevent them seeing a lawyer, nothing was done to help them to do so in circumstances where, in my judgment, positive and active assistance should have been provided. The men were unwell in a way that must have been distressing physically and emotionally, they had no families to hand who could help and they were plainly unhappy that they were not getting the help and advice they wanted. Their employer was the only realistic source of practical assistance….”
The judge found (at paragraph [84] of his judgment) that, following their return to the United Kingdom, “each claimant continued to be paid as if still employed by ADAMS until June 2006”. He observed that:
“During this period they were undergoing periodic medical examinations funded by ADAMS and the mutual hope, as I perceive it, was that they would one day be able to resume diving for ADAMS. In a sense, the payments were a kind of ‘sick pay’…”
These proceedings
Mr Harley and Mr Iles commenced proceedings by the issue of claim forms on 5 May 2006: Mr Hopley, who had instructed other solicitors, issued his claim form on 5 May 2006. In each case the claims were for damages for personal injury. The judge observed that the claims were issued “within the limitation period that would apply if UK law applied to their cases”. Given that the period of limitation prescribed by section 14(4) of the Limitation Act 1980 is three years from the date on which the cause of action accrued or, if later, from the date of knowledge of the person injured – and that there is nothing in the facts before this Court to suggest that Mr Hopley did not have the requisite knowledge on 7 May 2003 (when the incident occurred)—it is not clear to me why (in the case of Mr Hopley's claim) the judge took that view. But nothing turns on that; and it has not been suggested that he was wrong to do so.
Particulars of claim were served in each action on or about 5 June 2006. They are each in substantially the same form. Each contains allegations that the claimant was employed by ADAMS at the relevant time; and that Mr Smith was a co-employee. Each contains the allegation that the claimant was exposed to toxic chemicals poured by the crew of the Aramco vessel “… into the flushing valve on the port and starboard cargo hoses and into the bunker fuel system with the intention that oil...
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