Lucy v W T Henleys Telegraph Works Company Ltd

JurisdictionEngland & Wales
JudgeTHE MASTER OF THE ROLLS
Judgment Date17 July 1969
Judgment citation (vLex)[1969] EWCA Civ J0717-1
Date17 July 1969
CourtCourt of Appeal (Civil Division)
Between
Rose; Hary Lucy (Widow and Administratrix of the Estate of George Lucy, Deceased)
Plaintiff Appellant
and
W.T. Kenleys Telegraph Works Company Limited
Defendants
and
Imperial Chemical Industries Limited
Third Party
And Between
Hay Wild (Widow)
Plaintiff Appellant
and
Siemens Brothers & Company Limited
Defendants

[1969] EWCA Civ J0717-1

Before

The Master of The Rolls (Lord Denning)

Lord Justice Edrund Davies and

Lord Justice Legaw

In The Supreme Court of Judicature

Court of Appeal

Appeals from Orders of Mr. Justice Mackenna dated June 16, 1969.

Mr. J.D. STOCKER, Q.C., Mr. N. STUART-SMITH and Mr. N. IRVINE (instructed by Messrs. Pattinson & Brewer) appeared on behalf of the Plaintiffs Appellants.

Mr. G. HEMILTON (instructed by Messrs. Greenwoods) appeared on behalf of Defendants Henleys.

Mr. M. CLOTRIER, Q.C. and Mr. CRAWFORD (instructed by Mr. J.S. Copp) appeared on behalf of I.C.I.

Mr. P. MAYHEW (instructed by Messrs. Geoffrey Coombs & Co.) appeared on behalf of Defendant Siemens Brothers & Co., Ltd.

THE MASTER OF THE ROLLS
1

The late Mr. George Lucy was born in 1921. In 1935, as a boy of 14, he started work with Henleys at their cable works in Woolwich. He stayed with them for the next fifteen years until he left in 1950 at the age of 29. He then took up other work. But fourteen years later, in October 1964, he had to give up work as he was ill. He was found to be suffering from cancer of the bladder, and died two months later, on 26th December 1964.

2

Investigations were made and it was found that he had been exposed to harmful substances whilst he was working with Henleys. His work with Henleys had been to weigh and mix chemicals in the rubber mill. These chemicals included a substance called "Nonox S", which was manufactured by Imperial Chemical Industries. It had been withdrawn in 1949 because it was found to be harmful to people working with it. In particular it might be contaminated by traces of a poisonous substance called Beta Napthylamyne. So Henleys did not use it after 1949.

3

After Mr. Lucy's death, his Widow sought to bring an action for damages against his employers, Henleys, under the Fatal Accidents Act, and also under the Law Reform Act. She said they had been negligent because they did not warn her husband of the danger. She said that, as soon as Nonox S. was withdrawn, they ought to have advised him to have periodical medical examinations. If that had been done the cancer might have been discovered in time to operate, whereas it was discovered too late.

4

Informer times the widow's claim would have been defeated by the Statute of Limitations. Her husband had left Henleys fourteen years before his death. Their negligence had occurred so long ago that they could have relied on the Statute. It is true that her husband had no knowledge that he had a cause of action. But that did not matter. His claim - and hers as well - would have been barred under the Statutes, see a Cartledge and Others v. E. Jopling and Sons Limited, ( 1963, A.C. 758).

5

The injustice done by Cartledge v. Jopling was remedied by the Limitation Act, 1963. Parliament enacted that a man like Mr. Lucy, who was inflicted with an insidious disease like his, could bring an action when he got to know of it. He was not to be barred so long as he brought his action within 12 months of the time when he got to know the facts. Likewise his widow. She too could bring an action so long as she brought it within 12 months of his death.

6

The widow took all necessary steps to avail herself of the 1963 Act. Within a year of her husband's death she obtained leave for the purposes of that Act and brought an action against Henleys. She issued a writ against Henleys on 18th November 1965, just within the year.

7

But in June 1968 when the case was ready for trial, Henleys raised a new point. They sought to put the blame on to I.C.I. They said that I.C.I. knew that Nonox S. was poisonous but they did not tell Henleys of the hazards of it and had not told them to have their employees examined by medical tests. On 13th November 1968, Henleys got leave to serve a third-party notice on I.C.I. On 19th November 1968, they served that notice. So I.C.I. were fairly and squarely involved in the proceedings.

8

In this situation the widow's advisers seek to add I.C.I. as defendants to the action. They envisage the possibility that, in the three-cornered contest, I.C.I. may be held alone to blame. If so, they want the widow to be able to recover against I.C.I. and she cannot do so unless I.C.I. are made defendants to the action.

9

A similar problem faces other people. Six men in all have been afflicted with cancer after working with Nonox S. Four of them are living. Two of them have died, one of those two being Mr. Lucy; the other Mr. Wild. The four living men have applied to join I.C.I. as defendants and have been granted leave for the purpose. The two widows have also applied, butthey have been refused leave. This seems to me an extraordinary situation. There is no justification whatever for the widows being left out in the cold.

10

The Judge based his decision against the two widows on the words of Section 3(4) of the Limitation Act, 1963. That Section deals specially with cases where a widow is suing in respect of the death of her husband. It says that the advantages of the 1963 Act shall not extend to her "unless the action is brought before the end of the period of twelve months from the date on which the deceased died". The widow here brought her action against Henleys within time. But not her action against I.C.I. On that short ground the Judge rejected the widow's application.

11

I agree that, if the widow had issued a fresh writ against I.C.I., she would have been barred by Section 3(4). But she is not issuing a new writ. She is seeking to join I.C.I. as a defendant to her existing writ. And I do not see why she should not be permitted to do this, if it comes within the Rules, as I think it does. Once I.C.I. are joined, they become defendants to an action which was started within twelve months of the death, and Section 3(4) is satisfied.

12

I cannot believe that Parliament intended that the widows should be in a worse position than the living claimants. Seeing that the living claimants have been permitted to join I.C.I. as defendants, I think the widows should likewise be permitted. It comes back once again to the ever-recurring question: How should we construe an Act of Parliament? I have said before, and I repeat it now, that we should so construe an Act of Parliament as to effectuate the intention of the makers of it, and not to defeat it. If they have by mistake overlooked something, we should do our best to smooth it out. We should construe it so as to avoid absurdities and incongruities, and to produce a consistent and just result. This can be done quite simply here by construing the words "the action" in Section 3(4) as meaningsimply "the action which the widow brings in respect of the death of her husband". The sub-section does not mean that "the action against I.C.I." or "the action against the new defendant" is to be brought within twelve months of the husband's death. The sub-section means simply that the action in respect of his death must be brought within the twelve months. This is the only interpretation which does justice to the widows, as compared to the living claimants. It also fits in with the provision of the Fatal Accidents Act, 1846, on which Section 5(4) is founded. Section 1 of the 1846 Act gave the widow an action "whensoever the death of a person shall be caused by wrongful act, neglect or default"; and Section 3 said that "not more than one action shall lie for and in respect of the same subject-matter of complaint; and every such action shall be commenced within twelve calendar months after the death of such deceased person". Seeing that only one action lies, it must mean that there is to be only one action in respect of his death: and. that action must be brought within twelve months of his death. But I see no reason for supposing that every defendant must be fully ascertained by that time. If it should be proper at a later stage of the action to add another defendant, then he can be joined; and the action is still good because the action itself, in respect of the death, was brought within the twelve months.

13

So the main objection is overcome. But the widows still have to get leave to add I.C.I. as defendants, just as the four living men did. The leave of the Court is required for two purposes, first for the purpose of the Limitation Act, 1963; and secondly, for the purpose of Order 15, Rule 6, of the Rules of the Supreme Court. I will deal with these separately.

14

So far as the Limitation Act, 1963, is concerned, the application for leave comes within Section 2(2), because it is made before the commencement of the relevant action. The "relevant action" for this purpose is not the main action itself, but thejoinder of I.C.I. That joinder is itself an "action" within the definition of "any proceeding in a Court of Law" in Section 31 of the 1939 Act. It is "the relevant action" within Section 2(5) because it is the action in connection with which leave is required. The widow applies for leave before the joinder. It is accepted, I understand, that she can adduce evidence so as to bring the case within Section 2(2) similar to that given by the living claimants. So she should be given leave. It is, of course, provisional only. She will have to establish at the trial the requisite want of knowledge,

15

So far as Order 15, Rule 6 is concerned, it gives a very wide power of joinder. It gives the Court power to add a person as defendant if his presence is necessary to ensure that all matters in dispute are effectually add completely determined. Seeing that Kenleys have put the blame on to I.C.I., it is a plain case in which to join...

To continue reading

Request your trial
49 cases

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT