Miller v London Electrical Manufacturing Company Ltd
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE LAWTON,LORD JUSTICE BRIDGE |
| Judgment Date | 15 January 1976 |
| Judgment citation (vLex) | [1976] EWCA Civ J0115-2 |
| Date | 15 January 1976 |
| Court | Court of Appeal (Civil Division) |
[1976] EWCA Civ J0115-2
In The Supreme Court of Judicature
Court of Appeal
Civil Division
On appeal from Judgment of O'connor, J.
The Master of the Rolls (Lord Denning)
Lord Justice Lawton and
Lord Justice Bridge
Mr. J.P. GORMAN, Q.C. and Mr. J. ROBERTS (instructed by Messrs Leonard Ross & Craig) appeared on behalf of the Appellant (Plaintiff).
Mr. ROY BELDAM, Q.C. and Mr. H. CARLISLE (instructed by Messrs Blount, Petre & Co.) appeared on behalf of the Respondents (Defendants).
Mr. Albert Edward Miller was employed by the London Electrical Manufacturing Company Limited at their factory at Hammersmith. He was put to work on a machine which let off a fine cloud of powder. It settled everywhere. It caused dermatitis on his hands and face and skin. In 1967 he was off work for some two or three months. He went to hospital for treatment. He was given an ointment. He was told not to work on that machine. He went back to work in the same room but at some distance from the machine. In 1968 there was trouble again. He was off work on two different occasions. He saw the medical people. Again he was told to avoid the powder and given the ointment. This time he went back to work but in a completely different work room.
Two years later in November 1970 the machine was brought into that room for an overhaul. Although he was some distance from it, he was exposed to this harmful powder again. Again there was some trouble with his skin. Again he was off work for a time. On none of those occasions was it regarded as being extremely bad. It was regarded as a contact dermatitis which was only caused when he was in contact with the powder.
There was a marked deterioration in his condition at the end of May 1971. He had not been near this machine since January. Yet his hair fell out. He had sores all over his body. It was worse than it had been before. He went to hospital. He was an in-patient for some weeks. But this time it was not cured. The dermatitis became so bad he was unable to return to work.
It is quite clear from his evidence that he knew from 1967 onward that his employers were responsible; that they had been negligent; and that he would have a remedy in damages. He said that he did not take any action in the early years because he did not want to lose his Job. His last exposure to the powder wasfrom November 1970 to January 1971. Over three years then elapsed before he got legal advice. Eventually he went to the Citizens Advice Bureau. In April 1974 he was advised that the ordinary three year limitation had expired, and that his only possibility of bringing a claim was to get leave under the Limitation Act, 1963, which was the Act then in force.
Mr. Justice Forbes gave leave ex parte, but he ordered a preliminary issue to be tried, which I will read. It was: "Whether before the beginning of the period of three years ending on the date of the issue of the writ herein a reasonable person, knowing the facts then known to the Plaintiff, or which he ought reasonably to have ascertained, and having obtained appropriate advice with respect to those facts, would have thought in relation to any and if so which of the causes of action in respect of which the Plaintiff claims, that he had a reasonable prospect of recovering an award of damages sufficiently high to Justify the bringing of an action in respect of that cause of action".
That preliminary issue was framed from the wording of the Act and from the case of Goodchild v. Greatness Timber Co. Ltd., 1968 2 Queen's Bench, page 372. It came for trial before Mr. Justice O'Connor in January 1975. The Judge found that as a result of his exposure to the powder, he suffered contact dermatitis. That exposure was in the years 1967 and 1968, and later in November 1970 and January 1971. But by May 1971 the dermatitis had become more serious. It had become what the doctors call a constitutional dermatitis or constitutional eczema, from which he would never recover. Previously it could be soothed by creams and ointments. Now it was constitutional and virtually incurable. He has been in a very sorry state since.
The writ was issued on the 30th April, 1974. Mr. Gorman on his behalf submitted that it is a case where he did not know, within the three years before writ, of the "extent" of the injuries and that this was a material fact of a decisive character. He did not know of the constitutional dermatitis until May 1971 which was within the three years.
Section 7, subsection (4), says that any material facts shall be taken to be "facts of a decisive character if they were facts which a reasonable person, knowing those facts and having obtained appropriate advice with respect to them, would have regarded at that time as determining that an action would have a reasonable prospect of succeeding and of resulting in the award of damages sufficient to Justify the bringing of the action".
It has been decided by this Court in Goodchild v. Greatness Timber Co. Ltd. in 1968 2 queen's Bench, 373, that if a reasonable person in his place ought to have realised that he had a reasonable cause of action which would be productive of sufficiently high damages to Justify bringing an action, then he ought to bring it within the three years; and if he does not bring it within the three years, then it cannot be extended simply because it becomes worse thereafter. In that case the man had broken his shoulder. He was off work for some time, but he did not make a claim. Some years later there was a considerable extension of it. He had greatly increased pain. It was held by this Court that he ought to have brought his action within the three years, and there was no ground for applying the Limitation Act, 1963.
Knipe v. British Railways Board , in 1972 1 Queen's Bench, 361, was a different case. At the outset there was only a trivial injury, a strained knee. It was not worth while to bring an action for it. Ten years later it turned out that he had sustained aruptured tendon and had to wear a calliper for the rest of his days. It was then reasonable to bring an action. The worsening was a material fact of a decisive character.
Those two cases seem to me to show the...
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