Ivan Hinchliffe (Executor of the Estate of Aubrey Whitehead, Deceased) v Corus UK Ltd
| Jurisdiction | England & Wales |
| Judge | Mr. Roger ter Haar Q.C. |
| Judgment Date | 22 November 1010 |
| Neutral Citation | [2010] EWHC 2871 (QB) |
| Court | Queen's Bench Division |
| Date | 2010 |
| Docket Number | Claim No.: HQ10X01714 |
| Year | 2010 |
[2010] EWHC 2871 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Before: MR. ROGER ter HAAR Q.C.
(Sitting as a Deputy High Court Judge)
Claim No.: HQ10X01714
Mr. Simon Levene (instructed by JSP Solicitors Limited) for the Claimant
Mr. Andrew McLaughlin (instructed by Berrymans Lace Mawer LLP) for the Defendant
Hearing date: 2 nd November 2010
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
MR ROGER ter HAAR Q.C.
This judgment is given following the trial of a preliminary issue as to whether this action should be struck out as being statute-barred pursuant to the Limitation Act 1980.
For the reasons set out below, I hold that this claim is statute barred and I decline to exercise my discretion in favour of the Claimant under Section 33 of the Act. The result is that this action will be struck out.
The action is brought by Mr. Ivan Hinchliffe on behalf of the Estate of the late Mr. Aubrey Whitehead, who died on the 15 th February 2009.
The Evidence before me
Mr. Whitehead having died before proceedings were issued, I have not had the benefit of oral evidence from him: for reasons expanded upon below this is a key factor in my exercise of my discretion under Section 33.
I had before me a lengthy witness statement from Mr. James Smith of the Claimant's Solicitors (The James Smith Partnership) dated the 18 th March 2010 (TB32). This is full and very helpful: it sets out the history of the matter from the solicitors’ point of view, the firm having acted for the Deceased before he died as well as acting for his estate in these proceedings thereafter. It exhibits what must be the greater part of the solicitors’ file. Included in the file is a manuscript witness statement from the Deceased dated the 6 th January 2005 (TB61), a typed witness statement from the Deceased dated the 28 th December 2008 (TB195) and a further typed witness statement from the Deceased dated the 6 th February 2009 (TB152).
A second witness statement from Mr. Smith is dated the 20 th October 2010 (TB205) which exhibits witness statements from former fellow employees of the Deceased: Mr. Thompson (TB207), Mr. Bilby (TB211), Mr. Warburton (TB214) and Mr. Reaney (TB216).
In support of the Defendant's case I have a witness statement dated the 22 nd October 2010 from the Defendant's solicitor, Mr. Matthew Harrington (TB 489).
In addition I have copies of the Deceased's Hospital Records and G.P. Records and two medical reports from an eminent consultant specialising in diseases arising out of exposure to asbestos, Dr. Rudd (TB475 and 479).
Were this case to proceed to a full trial there would be substantial issues to be determined as to the extent to which and the circumstances in which the Deceased was exposed to asbestos and the consequences of that exposure. However, for the purposes of this preliminary issue there are no significant factual disputes. Reflecting this, I heard no oral evidence. However, the Defendant comments upon the absence of evidence from the Deceased in certain respects, as I explain below.
The Deceased's Employment History
Aubrey Whitehead was born on the 29 th August 1928. According to his December 2008 statement, he left school at the age of 14 years in 1942 and went to work as an office boy. In 1944 he went to work for Steel Peech and Tozer in Rotherham. In 1946 he was called up for National Service, being demobbed in 1949 after which he went back to Steel Peech and Tozer. The Claimant's case is that in none of these occupations did the Deceased have any significant exposure to asbestos.
In 1950 the Deceased went to work for the Yorkshire Engine Co. Ltd., to whose liabilities the Defendant in this action is said to have succeeded. He stayed in that employment until 1966 when the company closed down. He then went back to work for Steel Peech and Tozer where he remained until he was made redundant in 1983. That was his last employment.
It is the Claimant's case that during his employment with the Yorkshire Engine Co. Ltd. the Deceased was exposed to asbestos in sufficient quantities to cause him to suffer asbestosis.
The Deceased seeks medical treatment and legal advice
After leaving work, the Deceased enjoyed some years of generally good health but in 2000 he was diagnosed with prostate cancer. It is said that after treatment this was under control. In 2001 he suffered a pneumonia attack from which took him 5 months to recover.
At the beginning of 2002 the Deceased was referred to a specialist because of breathing difficulties. The consultant to whom he was referred at the Diana Princess of Wales Hospital in Grimsby was Dr. Jones.
On the 17 th January 2002 Dr. Kwok, Staff Physician to Dr. Jones, wrote a letter to the Deceased's G.P. saying as follows (TB418):
“This gentleman, admitted in August with Klebsiella pneumonia, was seen in our clinic today. For the past 2 to 3 months in particular his exercise tolerance has reduced down to 20 to 30 yards on the flat and he has to stop due to breathlessness. He can only manage 2 steps on the stairs unlike in the past where he could manage a full flight. His cough is mainly in the morning with thick white mucous and occasionally he notices he still has some haemoptysis….”
He was referred for a lung function test.
On the 25 th April 2002 the Senior House Officer to Dr. Jones reported as follows (TB420):
“I reviewed this gentleman in clinic today. His problems with mobility make him have to stop after 20–30 yards. He does not have much of cough now and has no other symptoms.
“His pulmonary function tests showed an FEV1 of 3.03, FVC of 3.87, and FEV1/FVC of 80 with a residual volume of 1.21 which is 46% of predicted and diffusion of 65%. These findings are consistent with a restrictive defect. His chest x-ray today showed bi-basal minimal fibrotic changes.
“On querying in detail he does give some history of exposure to asbestosis on and off for a period of about 8 years. He does not keep any birds.
“On examination he was mot anaemic. No clubbing. No evidence of any joint swelling. Peripheral pulses were well felt. Chest examination revealed a few bi-basal crackles. Heart sounds normal.
“I discussed this gentleman with Dr. Jones who reviewed his pulmonary function tests, chest x-rays and previous CT. As his main problem is not his breathing at the moment it has been decided to arrange auto antibody screening, and to arrange to review him again in four months time to see how he is progressing. I am also planning to repeat his pulmonary function tests toward the end of year. I have no made any change to his medications….”
On the 31 st October 2002 Dr. Gopakumar, Locum Staff Physician to Dr. Jones, wrote to the Deceased's G.P. saying (TB424):
“This man is doing quite well. His repeat chest x-ray today was pretty clear. The only problem he has was that of mild pain in the back of his chest. Clinical examination was unremarkable and none tender.
“I discussed this gentleman with Dr. Jones and we have decided to discharge him back to your care. Also I have suggested that he see you if the pain worsens.”
On the 5 th October 2004 the G.P. again referred the deceased to Dr. Jones (TB428):
“I would be grateful for your review of this patient who was previously under your care in 2001 when he had pneumonia and a cavitating lesion in the right upper lobe which was investigated and happily there was no evidence of malignity.
“Ever since then however he has been complaining of shortness of breath with a low grade chronic cough usually productive of mucoid sputum. Clinically chest has always sounded quite clear but a recent chest X-ray, September 8 th, suggests the possibility of pulmonary fibrosis.
“He has previously worked with asbestos and since there may be a compensation issue your assessment of the patient and his X-rays and comments as to whether you feel his condition is related to past employment would be much appreciated.”
Dr. Jones reported on the 16 th November 2004 (TB429):
“Thank you for your further letter about this gentleman, who told me today that he had a cough productive of clear sputum, mainly first thing in the mornings, and that he was more breathless walking. He now has to stop after walking the length of a bowling green.
“Mr. Whitehead also lost his wife some eighteen months ago, and I suspect that he is finding this quite difficult to cope with.
“Mr. Whitehead was a light smoker of five to ten cigarettes daily until he gave up twenty years ago. There are no birds at home. Mr. Whitehead was exposed to asbestos for ten years or so as a young man as part of his work.
“In 2001, we treated him for a peripheral right upper lobe Klebsiella lung abscess from which he made a good recovery. We have a set of lung function tests from October 2002, when he put up a very creditable performance with pretty normal lung function.
“Today, Mr. Whitehead appeared generally well. There was no anaemia, clubbing or cyanosis. Mr. Whitehead was in sinus rhythm with normal heart sounds and no murmurs. His blood pressure was 140/80. There were no signs of heart failure.
“Examination of the chest revealed a few inspiratory crackles in both axillary bases but was otherwise pretty clear. There were no other localising signs and no rhonchi. There were no palpable lymph nodes.
“Mr. Whitehead's chest radiograph of September 2004 does suggest a little blurring of the heart borders and perhaps the hemi-diaphragms, but I had previous radiographs from October 2003 only for...
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