Newton v Cammell Laird & Company (Shipbuilders and Engineers) Ltd
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE DAVIES,LORD JUSTICE WIDGERY |
| Judgment Date | 21 January 1969 |
| Judgment citation (vLex) | [1969] EWCA Civ J0121-1 |
| Court | Court of Appeal (Civil Division) |
| Date | 21 January 1969 |
[1969] EWCA Civ J0121-1
In The Supreme Court of Judicature
Court of Appeal.
Appeal of defendants from order of Mr, Justice Park dated July 31st, 1968.
The Master of the Rolls (Lord Denning).
Lord Justice Davies and
Lord Justice Widgery.
Mr. C.M. CLOTHIER, Q.C., and Mr. R.B. MARTIN (instructed by Messrs, Hextall Erskine & Co., agents for Messrs. Laces & Co., Liverpool) appeared on behalf of the Appellant Defendants.
Mr. D.B. McNEILL, Q.C. and Miss I. BERNSTEIN (instructed by Messrs, Berkson & Berkeon, Birkenhead) appeared on behalf of the Respondent Plaintiff.
Mr. Newton died in the year 1965 of asbestoaisi His widow claims damages under the Fatal Accidents Acts against his employers, Catamell Laird & Co. The question is whether her claim is barred by lapse of time.
Mr. Newton was born in 1908. He was employed by Cammell Laird for 12 years, from 1943 to 1955. He worked in the boiler rooms of ships and was exposed to asbestos dust. He left Cammell Laird in 1955 and obtained other employment in which he was free of asbestos dust. 9 years later, in November 1964, (when he was employed in Gloucester as an inspector of ballbearings), a mass radiography unit came to Gloucester. He was tested. The radiograph showed that something was wrong in his cheat. He went into hospital at Gloucester and afterwards at Blrkenhead. He was seen by a chest consultant, Dr. Caldwell, in January, 1965. Dr. Caldwell thought that there was some malignant trouble in his lung, and that it was due to his work with Cammell Laird more than 9 years before. It was caused by the asbestos dust in which he had worked whilst with them. Dr. Caldwell did not wish to alarm him unduly. So he told him that it was pleurisy; but he went on to tell him that it was due to his work with asbestos all those years before. Dr. Caldwell could see that Mr. Newton only had a few months to live, and he wanted to make life as comfortable as he could for him. So he suggested to him that he might apply for a disablement pension from the State authorities. Mr. Newton did so. He went before a Medical Board in March 1965. He told the Board that his illness was due to work in asbestos. The Board diagnosed it as pneumoconiosls and awarded him a 50% pension. From that time he went rapidly downhill. All he could do was to walk as far as the Post Office, but for the rest he stayed in the house. At the end of Julyhe was taken into hospital. He was a dying man. On 28th August he was very anxious to 10 home. He was taken home. He died the next day, 29th August, 1965.
So from first to last there were 6 to 7 months from the time when Dr. Caldwell told him it was due to asbestos to the time whenhe died. An inquest was held. The widow was represented there by lawyers. Nearly a year elapsed. Then the lawyers for the widow went to the Court and applied for leave under the Limitation Act 1963 to bring an action. On 23rd August, 1966, Mr. Justice Cusack gave leave. On 25th August, 1966, a writ was issued on behalf of the widow against Cammell Laird & Co. for damages for the eath of her husband due to ngeligence or breaoh of statutory duty. Cammell Laird & Co. put in a defence relying on the Statute of Limitations. Mr. Justice Cairns, following the decision of this Court in the case of Goodchild v. Greatness Timber Co. Ltd, (1968 2 W.L.R. 1283), (1968 2 Q.B. 372), ordered that a preliminary issue should be tried so as to determine whether or no the action was barred by the Statute of Limitation. The procedure by preliminary issue is very convenient, because it enables the Court to hear both sides: whereas in earlier cases under the 1963 Act we have only heard one side. Those were applications for leave which are made ex parte.
Under the Limitation Act of 1939, as amended in 1954 in the case of personal injury, the ordinary period of limitation is 3 years from the date when the cause of action accrued; and so, if we were only concerned with the 1939 Act, the widow's claim would be statute-barred, because the cause of action arose as long ago as 1955, see Cartledge & Others v. E. Jopling & Sons Ltd. (1963 A.C. 758), where a number of men, who suffered from pneumoconiosls, were barred for that very reason. It was to avoid the hardship in pneumoconiosls cases and such like that the Limitation Act of 1963 was passed.
Under the 1963 Act the time runs from the date when the injured or sick man knows, actually or constructively, that he has a cause of action. He has then to bring his action within 12 months of acquirins that knowledge. He is taken to have knowledge of his cause of action when he knows the material facts relating to it which are of & decisive nature. Once he knows those facts, actually or constructively, he has 12 months from that time. If he dies within those 12 months, his widow must bring her actionwithin 12 months from His death.
The first thins to do, therefore, is to find out on what date did the injured or sick man get to know, actually or constructively, the material and decisive facts. The material and decisive facts in the present case were:- First, that he was suffering from a serious illness due to exposure to asbestos dust; second, that Camoell Laird were guilty of negligence or breach of duty; and third, that his illness was attributable to their negligence or breach of duty. When did Mr. Newton have actual or constructive knowledge of those facts? He had actual knowledge of the first in January 1965, but he never had actual knowledge of the second or third before he died. So the question is when did he have constructive knowledge of the second and third? In other words, when did he have constructive knowledge that his illness was due to his employersl negligence or breach of duty?
The question of constructive knowledge is dealt with in section 7(5)(5) and (c), which I need not analyse in detail again today. They were considered by this Court in Pickles v. National Coal Board (1968 1 W.L.R. 997); and in Skingsley v. Cape Asbestos Co. Ltd. (1968 2 Lioyds Reports 201). Those cases show that the test of constructive knowledge is this: You have to ask yourself: At what date was it reasonable for him — for the sick man himself — to have taken advice and found out that his illness was due to his employers' negligence or breach of...
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Adams v Bracknell Forest Borough Council
...taken before that time for the purpose of obtaining appropriate advice with respect to those circumstances." 35 In Newton v Cammell Laird & Co (Shipbuilders and Engineers) Ltd [1969] 1 WLR 415, 419 Lord Denning MR explained how this test should be applied: "You have to ask yourself: At wha......
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Smith v Central Asbestos Company Ltd
... ... (1968 Vol. 2 Lloyds List Reports 201) ; Newton v. Cammell Laird & Co. (Shipbuilders and Engineers) Ltd ... ...
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Smith v Central Asbestos Company Ltd
... ... (1968 Vol. 2 Lloyds List Reports 201) ; Newton v. Cammell Laird & Co. (Shipbuilders and Engineers) Ltd ... ...
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Smith v Central Asbestos Company Ltd
...they are facts of a decisive nature and time then begins to run against him." 45In another case ( Newton v. Cammell Laird & Co. Ltd. [1969] 1 W.L.R. 415) in reference to section 7(3)( c) and (4) Widgery L.J. at p. 421 said "The missing fact which a man in his position could not know withou......